A  Selection  of  Cases 


on 


TRIAL  PRACTICE 

At  Common  Law  and  Under 
Modern  Statutes 


By  EDWARD  W.  HINTON 

Professor  of  Law,   University  of  Chicago 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1915 


Copyright,  1915 

BY 

Callaghan  &  Company 


T 


V 

^ 


PREFACE. 


From  an  early  period  law  schools  have  recognized  the  import- 
ance of  pleading  and  evidence  and  have  offered  well  organized 
courses  in  these  subjects,  but  until  recently  the  law  of  procedure 
has  been  inadequately  treated.  In  most  schools,  where  the  sub- 
ject was  noticed  at  all,  it  was  covered  by  a  lecture  course  on 
general  practice,  or  more  frequently,  the  practice  of  a  particular 
jurisdiction,  supplemented  by  more  or  less  unsatisfactory  work 
in  a  "moot  court"  of  some  sort. 

Several  causes  were  responsible  for  this  condition  of  affairs. 
First,  the  absence  of  any  text  adapted  to  class  room  needs ;  second, 
the  tendency  to  confuse  the  law  of  practice  with  the  art  of 
advocacy,  a  subject  difficult,  if  not  impossible,  to  teach  by 
ordinary  methods ;  third,  the  assumption  that  practice  was  essen- 
tially a  local  matter,  to  be  picked  up  in  the  office  and  court  room 
after  graduation.  The  result  was  that  graduates  came  to  the  bar 
well  trained  in  the  substantive  branches  of  the  law,  but  practically 
untrained  in  the  law  of  procedure.  It  is  not  surprising,  there- 
fore, that  cases  were  badly  tried  and  the  records  filled  with 
errors,  resulting  in  a  general  demand  for  a  reform  of  the  practice. 
No  doubt  this  part  of  the  law  may  be  vastly  improved,  but  the 
editor  is  skeptical  as  to  the  success  of  "simplified  procedure" 
without  adequately  trained  men  to  administer  it,  or  as  to  any 
real  reform,  not  based  on  thorough  understanding  of  the  system 
that  has  come  down  from  the  common  law,  modified  by  patch- 
work legislation. 

iii 


5GV'353 


IV  PREFACE, 

When  the  editor  undertook  to  organize  a  course  in  practice 
some  years  ago,  it  soon  became  apparent  to  him  that  the  same 
methods  of  study  and  instruction,  which  had  proved  satisfactory 
in  other  branches  of  the  law,  should  be  applied  to  this  perplexing 
topic.  As  there  was  no  collection  of  cases,  it  was  necessary  to 
send  the  students  to  the  original  reports,  an  unsatisfactory  method 
even  with  small  classes,  because  it  is  impracticable  to  have  the 
material  under  the  student's  eye  during  discussion  in  the  class 
room.  An  increasing  number  of  students  made  it  impossible  to 
rely  on  the  library,  and  hence  the  present  selection  of  cases  has 
been  prepared  to  meet  the  needs  of  students.  The  material  has 
been  collected  during  the  last  ten  years  for  class  room  use. 

Probably  no  two  instructors  would  agree  in  all  particulars  as 
to  the  precise  topics  which  should  be  included  in  such  a  collec- 
tion, or  as  to  the  relative  amount  of  space  which  should  be 
assigned  to  each.  In  an  attempt  to  solve  the  problem,  the  editor 
has  been  guided  by  his  own  experience  both  as  a  trial  lawyer  and 
teacher  of  practice,  and  by  the  following  considerations :  While 
it  might  be  theoretically  desirable  to  treat  the  entire  field  of 
adjective  law  as  one  connected  whole,  which  would  include  plead- 
ing and  evidence  in  their  relation  to  trials,  there  were  many 
practical  reasons  for  excluding  them  from  the  present  work. 
There  were  satisfactory  case  books  on  those  subjects  by  Pro- 
fessors Thayer,  Wigmore,  Ames  and  others,  which  the  present 
editor  could  not  hope  to  equal.  Further,  the  student  needs  a 
knowledge  of  the  common  law  pleading  at  an  early  stage  in  his 
course  in  order  to  understand  much  of  the  substantive  law,  which 
is  not  true,  or  at  least  not  to  the  same  extent,  in  the  case  of 
practice.  Hence  it  seemed  undesirable  to  encroach  on  existing 
courses  in  pleading  and  evidence.  The  subjects,  parties  to  actions, 
remedies  for  defective  pleading,  and  the  amendment  of  the  plead- 
ings, might  conceivably  be  treated  under  either  pleading  or 
practice,  but  seem  to  fall  more  naturally  into  the  pleading  courses. 
The  subject  of  chancery  practice  can  be  best  understood  in  con- 
nection with  the  equity  pleading.  These  exclusions  leave  the 
following  principal  topics  for  this  work :  Process,  defaults,  con- 
tinuances, conduct  of  the  trial,  trials  without  a  jury,  new  trials 
and  bills  of  exceptions.  The  space  allotted  to  each  has  been 
based,  as  far  as  possible,  on  their  relative  importance  and  diffi- 
culty. Since  our  procedure,  like  other  branches  of  the  law,  has 
been  derived  from  the  common  law,  English  cases  have  been  freely 


PREFACE.  V 

used,  and  in  fields  where  the  subject  has  been  developing,  and 
the  former  state  of  the  law  appeared  to  throw  light  on  its  present 
condition,  the  matter  has  been  traced  back  to  a  considerable 
extent.  The  American  cases  have  been  taken  from  the  Federal 
Courts  and  from  the  leading  common  law  and  code  states.  It  is 
believed  that  a  study  of  the  cases  will  demonstrate  that  the  law 
of  procedure,  while  superficially  variant  in  details  in  the  several 
jurisdictions,  is  in  the  main  surprisingly  uniform,  and  no  more 
local  than  torts  or  contracts.  The  present  compilation  is,  of 
course,  intended  primarily  for  the  use  of  students,  but  it  is  hoped 
that  it  may  also  be  found  useful  to  practitioners.  In  conclusion 
the  editor  wishes  to  acknowledge  his  indebtedness  to  the  work  of 
the  late  Professor  James  Bradley  Thayer  for  many  of  the  ideas 
he  has  attempted  to  embody  in  this  collection. 

Edward  W.  Hinton. 
Law  School 
University  of  Chicago 
September,  1915. 


TABLE  OF  CONTENTS 


CHAPTER  I. 

PROCESS. 

PAGE 

Seetion  1.     Form  and  Requisites 1 

(a)  Summons   1 

(b)  Notice  19 

Section  2.     Service   37 

(a)  Common  Law  and  Statutory  Methods, .  .  37 

(b)  Privilege  and  Exemption  from  Service..  62 

(c)  Waiver  of  Process  or  Service 78 

(d)  The  Service  Required  in  Various  Actions  108 
Section  3.     Returns    146 

(a)  Substance  and  Form 146 

(b)  Falsifying  154 

(c)  Amendment  162 

CHAPTER  II. 

JUDGMENTS  BY  DEFAULT. 

Section  1.     When  Allowed  174 

Section  2.     Effect   181 

Section  3.     Setting  Aside  and  Opening 189 

CHAPTER  III. 

CONTINUANCES. 


CHAPTER  IV. 

CONDUCT  OF  THE  TRIAL. 

Section  1.     Selection  of  the  Jury 222 

(a)   Challenges  to  the  Array 222 

vii 


Vlll 


TABLE  OF  CONTENTS. 


PAGE 

Section  1. — Continued. 

(b)   Challenges  to  the  Polls 235 

1.  For  Cause 235 

2.  Peremptory 256 

Section  2.     Introduction  of  Evidence 263 

(a)  Preliminary  Questions  263 

(b)  Offers  and  Objections 276 

Section  3.     Demurrers  to  the  Evidence 286 

Section  4.     Direction  of  the  Verdict 311 

(a)  When  Proper  311 

(b)  The  Motion  or  Request 355 

Section  5.     Nonsuits   374 

(a)  When  Permitted  or  Directed 374 

(b)  Wlien  Set  Aside  or  Reviewed 401 

Section  6.     Argument  of  Counsel 412 

Section  7.     Instructions   430 

(a)  Questions  for  the  Judge  or  Jury 430 

(b)  Rules  Governing  the  Charge 513 

(c)  Requests  and  Exceptions 571 

Section  8.     Verdicts   590 

(a)  Return  and  Entry 590 

(b)  General  Verdicts 609 

(e)  Special  Verdicts 626 

(d)  Special  Findings 637 

CHAPTER  V. 

TRIALS   BY  THE   COURT. 

Section  1.     Waiver  of  the  Jury 653 

Section  2.     Propositions  of  Law 663 

Section  3.     Special  Findings   673 

CHAPTER  VI. 

NEW  TRIAIiS. 

Section  1.     Grounds   683 

Section  2.     Motion  or  Application 735 

CHAPTER  VII. 

BILLS  OP  EXCEPTIONS. 


CASES  ON  TRIAL  PRACTICE 


CHAPTER  I. 
PROCESS. 

Section  1.     Form  and  Requisites. 

(a)  Summons. 

A  writ  is  a  latin  letter  of  the  king's,  from  thence  in  parch- 
ment sealed  with  his  seal.  All  writs  have  a  salutation,  Rex  to 
such  a  one  salutem,  and  a  conclusion  expressing  the  name  of  the 
one  which  is  witness  to  the  writs,  called  Teste  (who  in  writs  out 
of  the  chancery  is  the  king  himself;  in  other  writs  the  chief 
justice  of  the  place)  the  place,  as  apud  Westmonasteriiim,  etc., 
and  the  time,  both  day  and  year  of  the  making  of  it,  if  it  be 
returnable,  the  day  of  the  return  is  also  appointed  in  it.^ 

WRIT   IN    DEBT. 

George  ike  Third,  etc.    To  the  sheriff  of ,  greeting: 

Command  C.  D.,  late  of ,  that  justly  and  without 

delay  he  render  to  A.  B.  the  sum  of  £ ...  .  of  good  and  lawful 
money  of  Great  Britain,  which  he  owes  to,  and  unjustly  detains 
from  him,  as  it  is  said ;  and  unless  he  shall  so  do,  and  if  the  said 
A.  B.  shall  make  you  secure  of  prosecuting  his  claim,  then  sum- 
mon by  good  summoners,  the  said  C.  D.  that  he  be  before  us,  on 

wheresoever  we  shall  be  in  England,  (or,  in  C.  P. 

before  our  justices  at  Westminster,  on  ,)  to  shew 

wherefore  he  hath  not  done  it,  and  have  there  the  names  of  the 
summoners,  and  this  writ.    Witness  ourself,  etc.  L.  S.^ 

1  Finch's  Law,  Book  IV,  p.  237.  =  Tidd's  Appendix,  20. 

H.  T.  P.— 1  1 


2  PROCESS.  [Chap.  I. 

"The  first  process,  or  proceeding  upon  the  original  writ,  in 
actions  of  account,  couvenant,  debt,  annuity  and  detinue,  is  a 
summons,  or  warning  to  appear  according  to  the  exigency  of  the 
writ;  being  nothing  more  than  a  copy  of  the  writ  itself,  made  out 
by  the  plaintiff's  attorney  for  the  sheriff,  and  delivered  by  one 
of  his  officers  to  the  defendant,  or  left  at  the  usual  place  of  his 
abode.  "3 

' '  It  was  a  general  rule  or  maxim  of  law,  that  the  sanction  of 
the  king's  original  writ,  issued  out  of  chancery,  was  an  essential 
preliminary  form  to  the  institution  of  a  suit  in  the  common  law 
courts.  Non  potest  quis  sine  hrevi  agere;'^  this  was  the  prevail- 
ing doctrine.  The  practice  of  proceeding  by  bill  without  the 
original  writ  from  chancery,  in  personal  actions  and  in  eject- 
ment, formed  an  exception  to  the  rule.  The  practice  of  com- 
mencing an  action  by  bill  only  obtained  in  each  of  the  superior 
courts  in  the  case  of  certain  persons,  privileged  in  regard  to  their 
official  characters,  or  as  officers  of  the  courts,  to  be  sued  as  being 
already  present  in  court.  And  in  the  king's  bench  and  exchequer 
the  proceedings  by  bill  in  other  cases  was  introduced  by  fictions, 
and  afterwards  sanctioned  and  legalized  by  usage.  But  the  great 
variety  of  writs  and  bills  led  to  so  much  intricacy  and  confusion, 
that,  as  regards  personal  actions,  the  former  writs,  bills,  and  pro- 
ceedings were  abolished,  and  the  writs  of  summons,  capias,  and 
detainer  were  introduced  by  2W.  4,  c.  39,  and  which  writs  do 
not,  as  formerly,  set  out  the  whole  form  and  cause  of  action,  but 
are  only  adopted  as  modes  of  bringing  the  defendant  into  court, 
and  then,  and  not  before,  the  declaration,  stating  the  full  form 
and  cause  of  action,  is  delivered, " '* 

U.  S.  Compiled  Statutes,  1913. 

§  1534.  (R.  S.  §  911.)  Sealing  and  testing  of  writs.  All 
writs  and  processes  issuing  from  the  courts  of  the  United 
States  shall  be  under  the  seal  of  the  court  from  which  they 
issue,  and  shall  be  signed  by  the  clerk  thereof.  Those  issu- 
ing from  the  Supreme  Court  [or  a  circuit  court]  shall  bear  teste 
of  the  Chief  Justice  of  the  United  States,  or,  when  that  office  is 
vacant,  of  the  associate  justice  next  in  precedence,  and  those 

3  Tidd's  Practice,  2  Am.  Ed.  p.  103.  s  Chitty's  Pleading,  16  Am.  Ed.  * 

*  See  III  Blackstone  Comm.   *   ji.      p.  106. 
272. 


Sec.  1.]  FORM   AND   REQIHSITES.  3 

issuing  from  a  district  court  shall  bear  teste  of  the  judge,  or, 
when  that  office  is  vacant,  of  the  clerk  thereof.  The  seals  of 
said  courts  shall  be  provided  at  the  expense  of  the  United  States. 

§  1535.  (R.  S.  §  912.)  Teste  of  process,  Day  of.  All  proc- 
ess issued  from  the  courts  of  the  United  States  shall  bear  teste 
from  the  day  of  such  issue. ^ 

§  1580.  (R.  S.  §  948.)  Amendment  of  process.  Any  [cir 
cuit  or]  district  court  may  at  any  time,  in  its  discretion,  and 
upon  such  terms  as  it  may  deem  just,  allow  an  amendment  of 
any  process  returnable  to  or  before  it,  where  the  defect  has  not 
prejudiced,  and  the  amendment  will  not  injure  the  party  against 
whom  such  process  issues. 

§1591.  (R.  S.  §954.)  Defects  of  form;  amendments.  No 
summons,  writ,  declaration,  return,  process,  judgment,  or  other 
proceedings  in  civil  causes,  in  any  court  of  the  United 
States,  shall  be  abated,  arrested,  quashed,  or  reversed  for 
any  defect  or  want  of  form;  but  such  court  shall  proceed  and 
give  judgment  according  as  the  right  of  the  cause  and  matter 
in  law  shall  appear  to  it,  without  regarding  any  such  defect,  or 
want  of  form,  except  those  which,  in  cases  of  demurrer,  the  party 
demurring  specially  sets  down,  together  with  his  demurrer,  as 
the  cause  thereof;  and  such  court  shall  amend  every  such  defect 
and  want  of  form,  other  than  those  which  the  party  demurring 
so  expresses ;  and  may  at  any  time  permit  either  of  the  parties 
to  amend  any  defect  in  the  process  or  pleadings,  upon  such  con- 
ditions as  it  shall,  in  its  discretion  and  by  its  rules,  prescribe. 

Illinois  Constitution  and  Statutes. 

All  process  shall  run :  In  the  name  of  the  People  of  the  State 
of  Illinois ;  and  all  prosecutions  shall  be  carried  on :  In  the  name 
and  by  the  authority  of  the  People  of  the  State  of  Illinois ;  and 
conclude:  Against  the  peace  and  dignity  of  the  same.  Const. 
1870,  Art.  VI,  §  33. 

[1.  Process — Form — When  returnable.]  §  1.  J5e  it  enacted 
hy  the  People  of  the  State  of  Illinois,  represented  in  the  General 
Assembly:  The  first  process  in  all  actions  to  be  hereafter  com- 
menced in  any  of  the  courts  of  record  in  this  State  shall  be  a 
summons,  except  actions  where  special  bail  may  be  required; 

6  See  also  §  1536,  set  out  in  Peas- 
lee  V.  Haberstro,  15  Blatch.  472, 
post,  p.  18. 


4  PROCESS.  [Chap.  I. 

which  summons  shall  be  issued  under  the  seal  of  the  court,  tested 
in  the  name  of  the  clerk  of  such  court,  dated  on  the  day  it  shall 
be  issued,  and  signed  with  his  name,  and  shall  be  directed  to  the 
sheriff,  (or,  if  he  be  interested  in  the  suit,  to  the  coroner  of  the 
county,)  and  shall  be  made  returnable  on  the  first  day  of  the 
next  term  of  the  court  in  which  the  action  may  be  commenced. 
If  ten  days  shall  not  intervene  between  the  time  of  suing  out 
the  summons  and  the  next  term  of  court,  it  shall  be  made  return- 
able to  the  succeeding  term.  The  plaintiff  may,  in  any  case,  have 
summons  made  returnable  at  any  term  of  the  court  which  may 
be  held  within  three  months  after  the  date  thereof." 

[8.  Summons.]  §  8.  Upon  the  filing  of  every  bill,  the  clerk  of 
the  court  shall  thereupon  issue  a  summons,  tested,  dated  and 
sealed  as  a  summons  in  common  law  suits,  directed  to  the  sheriff 
of  the  county  in  which  the  defendant  resides,  if  the  defendant  be 
a  resident  of  this  state,  requiring  him  to  appear  and  answer  the 
bill  on  the  return  day  of  the  summons ;  and  where  there  are  sev- 
eral defendants  residing  in  different  counties,  a  separate  sum- 
mons shall  be  issued  to  each  county,  including  all  the  defendants 
residing  therein.^ 

[9.  Summons,  When  returnable.]  §  9.  Every  summons  in 
chancery  shall  be  made  returnable  to  the  next  term  of  the  court 
after  the  date  thereof,  or  the  next  succeeding  term  thereafter. 

[10.  Alias,  pluries,  etc.]  §  10.  If,  in  any  suit  in  chancery, 
the  process  shall  not  be  returned  executed  on  or  before  the 
return  day  thereof,  the  clerk,  if  required,  shall  issue  an  alias, 
pluries,  or  other  proeess,  without  an  order  of  the  court  therefor. 

FORM   of    summons. 

State  of  Illinois,  | 
Cook  County.     ( 
The  People  of  the  State  of  lUinois,  to  the  Sheriff  of  said  County, 
Greetings: 

We  command  you  that  you  summon if  he  shall 

be  found  in  your  county,  personally  to  be  and  to  appear  before 
the  Superior  Court  of  Cook  County,  on  the  first  day  of  the  term 
thereof,  to  be  holden  at  the  Court  House,  in  the  City  of  Chicago, 

7§1,  Chap.   110,  R.  S.  1913.  §38,  and  §§1756,  1757,  1759,  R.  S. 

General  Practice  Act.  1909. 

For    corresponding    provisions    in  » Chap.  22,  R.  S.  1913. 

Missouri,  see  Const.   1875,  Art.  VI,  Chancery  Practice  Act. 


Sec.  1.]  FORM    AND    REQUISITES.  5 

in  said  Cook  County,  on  the  first  Monday  of  January  next,  to 

answer  unto in  a  plea  of  trespass  on  tlie  case  upon 

promises,  to  the  damage  of  said  plaintiff,  as  it  is  said,  in  the  sum 
of  twenty-five  hundred  dollars. 

And  have  you  then  and  there  this  writ,  with  an  endorsement 
thereon  in  what  manner  you  shall  have  executed  the  same. 

Witness, ,  Clerk  of  our  said  Court,  and  the  Seal 

thereof,  at  Chicago,  aforesaid,  this  1st  day  of  December,  A.  D., 
1914. 

Seal  of  the      ]  Clerk. 

Superior  Court  ^ 
of  Cook  County! 

Wisconsin  Statutes,  1911. 

[2629.  Jurisdiction,  How  acquired.]  §  2629.  A  civil  action 
in  a  court  of  record  shall  be  commenced  by  the  service  of  a 
summons.  From  the  time  of  such  service  or  the  issuance  of  a 
provisional  remedy  the  court  shall  be  deemed  to  have  acquired 
jurisdiction  and  to  have  control  of  all  subsequent  proceedings. 

[2630.  Summons,  Contents  of.]  §  2630.  The  summons  shall 
contain : 

(1)  The  title  of  the  cause,  specifying  the  name  of  the  court 
in  which  the  action  is  brought,  the  name  of  the  county  desig- 
nated by  the  plaintiff  as  the  place  of  trial,  and  the  names  of  the 
parties  to  the  action,  plaintiff  and  defendant. 

(2)  A  direction  to  the  defendants  summoning  them  to  appear 
within  twenty  days  after  service  of  the  summons,  exclusive  of 
the  day  of  service,  and  defend  the  action. 

(3)  A  notice  that  in  ease  of  failure  so  to  do  judgment  will  be 
rendered  against  them  according  to  the  demand  of  the  complaint. 
It  shall  be  subscribed  by  the  plaintiff  or  his  attorney  with  the 
addition  of  his  postoffice  address,  at  which  papers  in  the  action 
may  be  served  on  him  by  mail.  There  may,  at  the  option  of  the 
plaintiff,  be  added  at  the  foot,  when  the  complaint  is  not  served 
with  the  summons  and  the  only  relief  sought  is  the  recovery  of 
money,  whether  upon  tort  or  contract,  a  brief  notice  specifying 
the  sum  to  be  demanded  by  the  complaint. 

[2631.  Form.]  §  2631.  Such  summons  ^  shall  be  substantially 
in  the  following  form  : 

9  The  summons  provided  by  the  treated  as  process,  though  it  serves 
Wisconsin    code    is    not    technically       the  same  purpose,  Porter  v.  Vander- 


PROCESS,  [Chap.  I. 
Court County 


A.  B.,  Plaintiff  ' 

vs. 
C.  D.,  Defendant.^ 
The  State  of  Wisconsin,  To  the  said  defendant: 

You  are  hereby  summoned  to  appear  within  twenty  days  after 
service  of  this  summons,  exclusive  of  the  day  of  service,  and  de- 
fend the  above  entitled  action  in  the  court  aforesaid;  and  in 
case  of  your  failure  so  to  do  judgment  will  be  rendered  against 
you  according  to  the  demand  of  the  complaint,  of  which  a  copy 
is  herewith  served  upon  you. 

E.  F.,  Plaintiff's  Attorney. 
P.  0.  address County,  Wis. 

If  the  complaint  be  not  served  with  the  summons  the  words 
' '  of  which  a  copy  is  herewith  served  upon  you ' '  may  be  omitted 
or  erased. 


DOAN  V.  BOLEY. 

38  Missouri,  449.     [1866.] 

Wagner,  Judge,  delivered  the  opinion  of  the  court.     Plaintiffs 
instituted  suit  in  1862,  in  the  Jefferson  County  Circuit  Court, 
against  the  defendants,  on  a  promissory  note.     A  summons  in 
the  usual  form,  except  that  it  did  not  run  in  the  name  of  the 
State  of  Missouri,  was  issued  and  served  upon  the  defendants. 
There  was  no  appearance  on  the  part  of  the  defendants,  and 
judgment  was  duly  given  against  them  in  behalf  of  the  plaintiffs. 
The  summons  commenced,  "To  the  sheriff,  etc.,"  and  not  "The 
State  of  Missouri  to  the  Sheriff,"  as  prescribed  by  the  Constitu- 
tion, and  this  is  the  only  error  urged  for  a  reversal.     It  is 
insisted  by  the  counsel  for  the  defendants  in  error,  that  as  no 
exceptions  were  taken,  or  motion  made  for  a  new  trial,  in  the 
court  below,  this  court  cannot  take  cognizance  of  the  matter 

cook,  11  Wis.  70;  see  also  McKenna  the     Federal     Statute,     Middleton 

V.  Cooper,  79  Kans.  847,  post,  p.  28.  Paper  Co.  v.  Rock  River  Co.,  19  Fed. 

But  summons  from  a  Federal  court  252. 
sitting  in  Wisconsin  is  governed  by 


Sec.  1.] 


DOAN  V.   BOLET. 


here.  In  the  ease  of  Bateson  v.  Clark,  37  Mo.  31,  the  distinction 
between  what  is  properly  matter  of  error  and  exception  was 
briefly  examined  and  pointed  out,  and  the  rule  laid  down,  that 
error  apparent  on  the  face  of  the  record,  which  includes  the 
pleadings,  summons  and  judgment,  may  be  taken  advantage  of 
by  writ  of  error  in  this  court  whether  any  motion  was  made  or 
exceptions  taken  in  the  court  below  or  not. 

It  is  not  contended  that  the  writ  was  entirely  void  by  reason 
of  not  running  in  the  name  of  the  State,  but  that  it  was  simply 
voidable.^     Undoubtedly  it  would  have  been  quashed  on  motion 


1  McGrath,  J.,  in  Forbes  v.  Dar- 
ling, 94  Mich.  621  (1893):  The 
validity  of  the  foreclosure  proceed- 
ing is  attacked  on  the  ground  that 
the  subpoena  issued  in  the  cause, 
and  returned  as  served,  was  not 
styled,  "In  the  Name  of  the  Peo- 
ple of  the  State  of  Michigan. ' ' 
The  subpoena  was  returned,  served, 
but  Francina  Forbes  did  not  appear, 
and  the  bill  was  taken  as  confessed. 
The  statute  (§  7290)  provides  that 
the  style  of  all  process  from  courts 
of  record  in  this  State  shall  be,  * '  In 
the  Name  of  the  People  of  the  State 
of  Michigan. ' '  Section  35  of  article 
6  of  the  Constitution  provides  that 
the  style  of  all  process  shall  be,  ' '  In 
the  Name  of  the  People  of  the  State 
of  Michigan."  In  Tweed  v.  Met- 
calf,  4  Mich.  579,  and  again  in 
Wisner  v.  Davenport,  5  Id.  501,  it 
was  insisted  that  certain  tax  rolls 
were  void,  because  the  warrant  to 
the  township  treasurer  was  not 
styled,  "In  the  Name  of  the  People 
of  the  State  of  Michigan ; ' '  but 
the  Court  held  that  the  common- 
law  definition  of  the  term  ' '  proc- 
ess" is  a  writ  issued  by  some  court 
or  officer  exercising  judicial  powers, 
and,  further,  that  the  term  "proc- 
ess" was  intended  to  mean  writs  is- 
sued in  the  exercise  of  that  judicial 
power  created  and  established  by 
the  Constitution. 


In  Johnson  v.  Insurance  Co.,  12 
Mich.  216,  the  objection  was  made 
that  the  scire  facias  was  not  tested, 
' '  In  the  Name  of  the  People  of 
the  State  of  Michigan."  The  Court 
held  that  neither  the  Constitution 
nor  the  statute  required  the  writ  to 
be  so  tested;  that  the  objection, 
which  was  a  purely  technical  one, 
was  itself  insufficiently  taken;  and 
that  it  was  therefore  unnecessary  to 
determine  whether  the  Constitution 
could  be  satisfied  by  a  substantial 
compliance  therewith.  There  the 
scire  facias  was  styled  as  follows: 
' '  The  People  of  the  State  of  Michi- 
gan ; "  and  the  Court  held  that  the 
fact  that  the  words  ' '  In  the  Name 
of  the  People  of  the  State  of  Michi- 
gan ; ' '  were  inserted  in  the  Consti- 
tution between  inverted  commas 
favored  the  idea  that  the  phrase 
must  be  used  verbatim. 

In   the   present  case   the    caption 
of  the  process  was  as  follows: 
"State  of  Michigan. 

' '  The      Circuit     Court     for     the 
County   of   Newaygo,    in   Chan- 
cery. ' ' 
' '  To   Francina   Forbes — Greeting. ' ' 

This  is  not  even  a  substantial 
compliance  with  this  provision  of  the 
Constitution.  The  object  of  this 
provision  undoubtedly  is  to  make 
this  style  the  distinguishing  feature 
of  all  process.     The  requirement  is 


8  PROCESS.  [Chap.  I. 

ill  the  court  below,  or  it  might  have  been  amended  on  a  direct 
application  for  that  purpose.  It  has  been  held  that  the  provi- 
sions of  the  State  Constitution  requiring  all  writs  and  process  to 
run  in  the  name  of  the  State  of  Missouri  is  merely  directory,  and 
therefore  an  omission  to  comply  with  the  requirements  would  be 
merely  irregularity — Davis  v.  Wood,  7  Mo.  162.  Now  the  statute 
declares  that  when  a  verdict  shall  have  been  rendered  in  any 
cause,  the  judgment  thereon  shall  not  be  stayed,  nor  shall  the 
judgment  upon  such  verdict,  or  any  judgment  upon  confession, 
nUiil  elicit,  or  upon  failure  to  answer,  be  reversed,  impaired  or 
in  any  way  affected  for  any  default  or  defect  of  process.  The 
process  here  was  certainly  defective;  it  might  have  been  taken 
advantage  of  at  the  proper  time,  but,  as  the  parties  did  not  avail 
themselves  of  the  defect,  it  is  cured  by  virtue  of  the  statute. — 
R.  C.  1855,  p.  1255,  §  19. 

The  other  judges  concurring,  the  judgment  will  be  affirmed. 


CASE  V.  HUMPHREY. 

6  Connecticut,  130.     [1826.] 

This  was  an  action  on  the  case,  for  a  false  return  of  a  writ  of 
attachment  against  the  plaintiff.  The  declaration  stated,  That 
on  the  16th  of  September,  1823,  a  writ  of  attachment  was  issued, 
in  favour  of  Benjamin  Weed,  against  the  plaintiff,  on  a  promis- 
sory note ;  that  it  was  directed  to  the  defendant,  as  an  indifferent 
person,  by  Benjamin  Weed,  jun.,  a  justice  of  the  peace,  who 
signed  the  writ ;  that  it  was  delivered  to  the  defendant  to  execute ; 
that  the  plaintiff  had  a  good  defence  to  the  action,  of  which  he 
had  neither  notice  nor  knowledge ;  but  that  the  defendant  fraudu- 

constitutional,    and    the   defect   jur-  Complainants  are  entitled   to   the 

isdictional.  costs   of   both   courts. 

The  decree  below  must  therefore  The  other  justices  concurred, 

be     reversed,     and     defendants    en-  In   State  Bank  v.   Buckmaster,   1 

joined  from  proceeding  to  sale  un-  111.    176    (1826),    it   was   held    that 

der  the  decree  for  foreclosure,  with-  such  an  omission  might  be  supplied 

out  prejudice,  however,  to  any  sub-  by  amendment  after  motion  to  dis- 

sequent     proceedings     to     foreclose  miss. 
said  mortgage. 


Sec.  1.]  CASE  v.  Humphrey.  ,  9- 

lently  indorsed  upon  the  writ,  that  he  had  made  service  of  it,  and 
returned  it  to  the  county  court  of  Hartford  county,  to  which  it 
was  returnable ;  that  at  the  term  of  that  court,  in  November,  1828, 
Benjamin  Weed  recovered  judgment  against  the  plaintiff,  by 
default ;  and  that  by  execution  issued  upon  the  judgment,  the 
paintiff 's  pi'operty  was  subsequently  taken  aid  sold. 

The  cause  was  tried,  upon  the  issue  of  not  guilty,  at  Litchfield, 
February  term,  1826,  before  Hosmer,  Ch.  J. 

The  trial  judge  excluded  the  record  of  the  judgment  and 
directed  a  verdict  for  defendant.  Plaintiff  moved  for  a  new 
trial. 

Hosmer,  Ch.  J.  No  doubt  can  be  entertained,  that  the  plain- 
tiff's declaration  was  sufficient  to  withstand  a  demurrer;  and 
that  he  has  done  what  it  was  necessary  he  should  do ;  and  that  is, 
he  has  averred,  that  the  writ  was  lawfully  directed  to  the 
defendant,  as  an  indifferent  person,  and  that  a  lawful  judgment 
was  rendered  upon  it. 

Did  the  testimony  offered  sustain  this  allegation  ? 

The  writ  in  question  was  directed  to  the  defendant,  as  an 
indifferent  person ;  and  the  justice  who  administered  the  pre- 
liminary oath,  certified  in  the  following  terms:  "Personally 
appeared  Samuel  Weed,  and  made  solemn  oath,  that  he  verily  be- 
lieved the  plaintiff'  to  be  in  danger  of  losing  the  within  described 
debt,  unless  an  indifferent  person  be  deputed  for  the  immediate 
service  of  the  writ. ' ' 

The  law  requires,  if  a  sheriff  or  constable  cannot  be  obtained  to 
serve  process,  that  before  the  direction  of  it  to  an  indifferent 
person,  an  affidavit,  in  certain  prescribed  words,  shall  be  made, 
by  the  plaintiff,  or  his  agent,  and  the  same  shall  be  certified  on 
the  writ.     Stat.  p.  35. 

Certain  positions  relating  to  this  subject  are  perfectl}^  incon- 
trovertible. 

The  certificate  of  the  justice,  regarding  the  administration  of 
the  oath,  is  the  only  source  of  evidence  to  which  the  court  can, 
recur.  From  this  it  must  appear,  at  least  by  reasonable  con- 
struction of  the  words  of  it,  and  not  from  conjecture,  presump- 
tion or  any  thing  de  liors,  that  the  prerequisites  of  the  law  have 
been  complied  with.  Stanton  v.  Button,  2  Conn.  Rep.  527.  The 
oath  must  be  administered,  in  the  prescribed  words  of  the  law, 
and  not  in  what  the  ju.stiee  may,  perhaps,  very  erroneously, 
consider  equivalent  expressions;   and   from  his  certificate  this 


10  PROCESS.  [Chap.  I. 

must  appear.  It  likewise  must  appear  that  the  persou  making 
affidavit  was  the  plaintiff  in  the  suit  or  his  agent.  The  service 
of  wTits,  in  general,  is  required  to  be  made  by  a  known  public 
officer;  and  it  is  no  unwarrantable  inference  that  the  protection 
and  security  of  the  citizen  are  interested  in  the  prevention  of 
any  unnecessary  departure  from  this  principle.  The  plaintiff's 
declaration,  if  the  facts  are  stated  truly,  is  an  illustration  and 
proof  of  this  position.  The  direction  of  a  writ  to  an  indifferent 
person  is  an  exception  from  the  general  rule ;  and  all  exceptions 
from  the  common  principle  are  to  receive  a  strict  construction. 

To  the  direction  of  the  writ  in  question  there  are  two  decisive 
objections.  In  the  first  place,  the  oath  was  administered  to 
Samuel  Weed,  who  certainly  was  not  the  plaintiff  in  the  suit; 
nor  is  it  said  that  he  was  his  agent.  He  was  a  stranger,  incapable 
of  making  a  legal  affidavit.  The  law  is  peremptory,  that  the  oath 
shall  be  made,  by  the  plaintiff,  or  his  agent ;  and  he  was  neither. 
It  cannot  be  presumed,  as  there  is  nothing  from  which  a  pre- 
sumption can  be  made,  that  he  was  authorized  by  the  plaintiff; 
unless  we  admit,  to  aid  the  justice's  certificate,  that  all  mankind 
were  his  agents :  for  every  man  in  the  community,  from  the  nature 
of  the  case,  is  equally  within  the  scope  of  this  liberal  conjecture. 

There  is  a  second  objection  precisely  as  fatal  to  the  legality  of 
the  direction.  The  justice  has  not  certified  that  he  administered 
the  oath  prescribed  by  law ;  but  that  the  deponent  swore  to  some- 
thing, which  the  justice  considered  of  the  same  import. 

The  direction  of  the  writ  not  being  legal,  the  indifferent  person 
was,  in  no  sense,  an  officer,  nor  invested  with  authority  to  make 
service.  There  being  no  service,  nor  even  possibility  of  it,  under 
the  illegal  direction,  the  judgment  of  the  court  was  extra-judicial 
and  void.  The  jurisdiction  of  a  court,  if  it  extend  to  the  parties 
and  subject  matter,  when  legally  before  them,  can  never  be  called 
into  exercise,  unless  through  the  medium  of  a  process,  complete 
in  law,  and  duly  served ;  or  in  other  words,  the  court  must  first 
have  cognizance  of  the  process  before  it  can  do  any  legal  act  in 
the  cause.  Grumon  v.  Raymond  et  al.  1  Conn.  Rep.  40.  Between 
a  writ  not  duly  directed  to  an  indifferent  person,  and  one  that  has 
no  direction  in  fact,  there  is  no  legal  difference. 

It  results,  most  clearly,  that  the  evidence  offered,  of  a  writ  not 
lawfully  directed,  of  a  judgment  in  fact  only,  and  not  in  law, 
did  not  sustain  the  averment,  that  a  writ  was  legally  directed, 


Sec.  1.]  CASE  v.  Humphrey,  11 

or  that  a  judgment  was  legally  rendered ;  and  for  this  reason,  it 
was  correctly  repelled. 

The  plaintiff  has  contended  that  it  is  too  late  for  the  court  to 
act  upon  the  objections  to  the  writ  and  judgment,  which  have 
been  discussed. 

He  first  insists  that  the  only  remedy  for  the  unauthorized  di- 
rection of  the  writ  was  by  plea  of  abatement ;  and  to  sustain  this 
position  he  relies  on  the  words  of  the  statute,  p.  35,  that,  "if  any 
writ,  etc.  shall  be  directed  to  an  indifferent  person,  except  in  the 
eases  and  under  the  regulations  above  mentioned,  it  shall  abate. ' ' 
The  law,  most  manifestly,  has  been  misconceived  by  the  confound- 
ing of  two  expressions  of  a  very  different  meaning.  It  is  not 
said  that  the  defendant  shall  take  his  redress  by  plea  of  abate- 
ment, but  that  the  writ  shall  abate.  This  is  a  generic  term, 
derived  from  the  French  word  abattre,  and  signifies  to  quash, 
beat  do,wn,  or  destroy.  3  Black.  Comm,  168,  The  modes  of 
abatement  are  various ,  but  the  thing  is  simple  and  uniform.  A 
plea  of  abatement  is  one  mode  of  quashing  a  writ,  but  it  is  not 
the  only  one.  Sometimes  it  is  the  duty  of  the  court  to  abate  the 
writ  ex  officio,  and  the  instances  where  this  is  the  legal  and 
proper  remedy  are  numerous.  Where  a  writ  is  nullity,  so  that 
judgment  thereon  would  be  incurably  erroneous,  it  is  de  facto 
abated.  Earl  of  Clanrickard's  case,  Hob.  288.  Case  of  Fines, 
3  Rep.  85.  Hughson  v.  Webb,  Cro.  Eliz.  121.  Cooke  v.  Gibbs, 
2  Mass.  Rep.  193.  Wood  v.  Ross,  11  Mass.  Rep.  271.  And  even 
the  explicit  admission  of  its  validity  by  the  party  never  concludes 
the  court.  In  the  case  before  us,  it  never  could  have  been  the 
intention  of  the  legislature  to  suspend  the  remedy  on  a  plea  of 
abatement,  but  to  enjoin  on  the  court  that  a  writ,  incomplete, 
without  direction  to  a  person  who  could  serve  it  and  attended 
with  a  defect,  palpable,  fatal  and  unamendable,  should  be 
quashed.  Eno  v.  Frisbie,  5  Day,  127,  When  they  declared  that 
such  writ  shall  abate,  the  term  was  used  in  its  most  comprehensive 
sense,  not  prescribing  a  mode,  but  commanding  the  thing  in  a 
manner  the  most  absolute  and  imperious. 

If,  however,  the  law  had  prescribed  that  the  writ  should  be 
dismissed,  on  plea  of  abatement,  it  would  have  made  no  difference 
in  the  case.  The  prescription  of  one  mode  of  redress,  where  the 
common  law  gives  another  remedy,  does  not  operate  a  repeal  of 
the  common  law  if  there  is  no  inconsistency  between  them ;  but 
they  shaU  both  have  a  concurrent  efficacy.     Dr.  Foster's  case,  11 


12  PROCESS.  [Chap.  I. 

Rep.  63.  1  Black.  Com.  89.  The  common  law  must  be  nega- 
tived by  the  statute  or  the  matter  must  be  so  clearly  repugnant 
as  to  imply  a  negative  in  order  to  effect  a  repeal  of  it. 

The  result  on  this  part  of  the  argument  is,  that  the  statute 
has  not  required  a  plea  of  abatement  in  the  case  supposed;  and 
if  it  had,  it  would  not  take  away  the  common  law  remedy. 

New  trml  reficsed. 


OAKLEY  qui  tam  v.  GILES. 
3  East,  167.     [1802.] 

In  action  to  recover  penalties  on  a  statute,  the  defendant  was 
served  on  the  3d  of  November  with  a  copy  of  process  in  the  name 
of  AVilliam  Giles,  his  true  name  being  Edward ;  in  consequence 
of  which  he  did  not  appear,  but  the  plaintiff  afterwards  served 
him  with  notice  of  declaration  by  his  right  name,  and  proceeded 
to  judgment  against  him  for  want  of  a  plea,  and  sued  out  execu- 
tion last  night. 

Park  thereupon  moved  to  set  aside  the  proceedings  for  irregu- 
larity, and  cited  Doe  v.  Butcher  (3  T.  R.  611)  and  Corbett  v. 
Bates  (3  T.  R.  660),  in  which  the  distinction  was  taken  in  this 
respect,  where  the  defendant  himself  appears  when  sued  by  a 
wrong  name,  and  where  the  plaintiff  enters  an  appearance  for 
him,  according  to  the  statute  by  his  right  name ;  in  the  latter  case 
the  defect  is  not  cured,  and  the  Court  will  set  aside  the  sub- 
sequent proceedings  for  irregularity. 

The  Court,  however,  refused  a  rule ;  saying  that  the  defendant 
having  been  the  real  person  served  with  the  process,  ought  to  have 
pleaded  in  abatement,  and  could  not  take  advantage  of  the  mis- 
nomer in  any  other  manner  than  that  which  the  law  had  marked 
out:  if  this  were  allowed,  pleas  in  abatement  for  a  misnomer 
might  be  struck  out  of  the  books. 

Park,  at  the  close  of  the  day  renewed  his  motion,  and  obtained 
a  rule  nisi  for  setting  aside  the  proceedings  on  payment  of  costs, 
upon  a  further  affidavit,  stating  that  the  defendant's  attorney 
had  been  misled  by  the  authorities  and  books  of  practice,  and  had 
advised  the  defendant  not  to  appear  and  defend  himself  against 
what  was  deemed  to  be  nugatory  process;  and  also  swearing  to 
merits. 


Sec.  1.]  GILL   V.    HOBLIT.  13 

GILL  V.  HOBLIT. 

23  Illinois,  420.     [I860.] 

"Writ  of  error  to  a  judgment  by  default. 

Mr.  Chief  Justice  Caton  delivered  the  opinion  of  the  Court : 
•We  are  asked  in  this  case  to  reconsider  the  question  decided  in 
Orendorff  v.  Stanberry,  20  111.  90.    The  judgment  was  rendered 
against  Gill,  the  plaintiff  in  error,  by  the  Logan  Circuit  Court, 
upon  a  summons  issued  by  the  clerk  of  that  court,  as  follows : 
"The  State  of  Illinois) 
Logan  County         \ 
"The   People  of  the   State  of  Illinois  to  the  Sheriff  of  Cook 

County : 

"We  command  you  that  you  summons  George  Michael  and 
Elijah  Wicklin  and  Richard  T.  Gill,  if  they  shall  be  found  in 
your  county,  personally  to  be  and  appear  before  the  Circuit 
Court  of  said  county,  on  the  first  day  of  the  next  term  thereof,  to 
be  holdeu  at  the  Court  House  in  Lincoln,  on  the  third  ^londay 
in  the  month  of  September  next,  to  answer  Samuel  Hoblit  in  a 
plea  of  assumpsit,  to  his  damage,  .$600,  as  he  saith ;  and  have  you 
then  and  there  this  writ  and  make  return  thereon  in  what  man- 
ner you  execute  the  same. 

Witness  J.  C.  Webster,  Clerk  of  our  Circuit  Court  at  Lincoln, 
this  21st  day  of  August,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-seven. 
(seal)  Teste     J.  C.  Webster,  Clerk  of  Circuit  Court." 

This  summons  was  returned  by  the  sheriff  of  Cook  County 
served  on  Gill ;  the  other  defendants  not  found.  Where  was  the 
defendant  below  commanded  to  appear  and  answer  the  com- 
plaint of  the  plaintiff?  The  summons  was  directed  to  the  sheriff 
of  Cook  County,  who  was  commanded  to  summon  the  defendants, 
if  they  should  be  found  in  his  county,  to  appear  before  the  circuit 
court  of  said  county,  at  the  court  house  in  Lincoln.  There  can  be 
no  dispute  that  the  county  of  the  sheriff  to  whom  the  summons 
was  directed,  was  Cook  County.  In  that  county  he  was  com- 
manded to  search  for  the  defendants,  and  if  found  there,  to  sum- 
mon them  to  appear  before  the  Circuit  Court  of  that  county.  If 
the  sheriff  obeyed  the  command  of  the  writ,  he  summoned  Gill  to 
appear  before  the  Circuit  Court  of  that  county.  His  return  shows 
that  he  served  the  writ  as  he  was  commanded  by  it.     Had  he 


14  PROCESS.  [Chap.  I. 

summoned  the  defendant  to  appear  before  the  Logan  Circuit 
Court,  he  would  have  disobeyed  the  mandate  which  he  had 
received,  and  for  that  reason  the  act  would  have  been  void. 
Where  then  was  the  defendant  bound  to  appear?  Not  in  Logan 
County  surely,  for  he  was  not  required  to  go  there,  but  before 
the  Circuit  Court  of  Cook  County,  to  be  holden  at  Lincoln,  and 
when  he  could  find  no  such  place  in  that  county,  he  was  not 
bound  to  seek  another  court  in  a  different  county.  It  was  not 
a  matter  of  doubt  even,  as  was  urged  upon  the  argument,  whether 
he  should  appear  before  the  Cook  or  the  Logan  Circuit  Court, 
which  doubt  he  was  bound  to  solve  by  hunting  up  Lincoln,  in 
Logan  County,  and  there  appearing.  He  was  no  more  bound  to 
go  into  Logan  County,  than  he  was  into  Peoria.  He  was  bound 
to  obey  the  summons,  or  if  that  was  impossible,  he  was  bound  to 
do  nothing.  But  the  summons  was  in  fact  void,  for  it  contained 
a  mandate  to  the  defendant  w^hich  he  was  not  bound  to  obey,  and 
which,  in  fact,  it  was  impossible  for  him  to  obey.  We  adhere  to 
our  former  decision,  and  reverse  the  judgment  and  remand  the 
cause. 

Judgment  reversed} 


PARSONS  V.  SWEET. 

32  New  Hampshire,  87.     [1855.] 

The  original  writ  in  this  action,  dated  March  24,  1855,  was 
made  returnable  to  the  Court  of  Common  Pleas,  May  term,  1855, 
and  bore  the  teste  of  John  J.  Gilchrist,  Esquire.  At  the  first 
term  in  the  Common  Pleas  the  defendants  pleaded  in  abatement 
of  the  writ  that  it  did  not  bear  the  teste  of  the  chief,  first,  or 
senior  justice  of  that  court.  To  this  plea  the  plaintiiBf  demurred, 
and  the  plea  was  adjudged  to  be  bad  on  account  of  defect  in 
form.  At  the  second  term  in  the  Common  Pleas  the  defendants 
moved  that  the  writ  be  quashed  for  the  same  cause  that  had 
before  been  pleaded  in  abatement,  and  the  motion  was  denied. 

1  And  80  where  summons  required  Mich.  157 ;  Bobb  v.  Graham,  4  Mo. 
defendant  to  appear  at  a  time  al-  222,  where  summons  did  not  fix  the 
ready  past,  Hendricks  v.  Pugh,  57       time  for  appearance. 


Sec.  1.]  PARSONS  v.  sweet.  15 

No  evidence  was  offered,  on  the  motion.  On  the  24th  of  March, 
1855,  John  J.  Gilchrist,  Esquire,  was  not  in  fact  chief,  first  or 
senior  justice  of  the  Court  of  Common  Pleas,  he  having  before 
that  time  resigned  his  office  of  chief  justice  of  that  court  and  of 
the  Superior  Court. 

Perley,  C.  J.  The  Constitution  of  New  Hampshire,  article  87, 
provides  that  "all  writs  issuing  out  of  the  clerk's  office  in  any  of 
the  courts  of  law,  shall  be  in  the  name  of  the  State  of  New  Hamp- 
shire; shall  be  under  the  seal  of  the  court  whence  they  issue, 
and  bear  the  teste  of  the  chief,  first,  or  senior  justice  of  the  court, 
and  shall  be  signed  by  the  clerk  of  said  court. ' ' 

Provisions  of  the  Constitution  are  to  be  interpreted  by  the 
same  rules  that  are  applied  in  the  construction  of  similar  pro- 
visions in  statutes;  and  the  party  that  would  avail  himself  of 
any  provision  in  the  Constitution  must  do  it  in  the  same  manner 
and  in  the  same  time  and  order,  that  would  be  required  in  cases 
of  like  provisions  in  statutes.  Ripley  v.  Warren,  2  Pick.  594; 
Marston  v.  Brackett,  9  N.  H.  336,  349. 

Before  the  Revolution  all  writs  in  the  Province  of  New  Hamp- 
shire were  in  the  king's  name;  and  probably  when  the  change 
was  first  made,  by  substituting  the  name  of  the  State  for  the 
regal  style,  one  object  was  to  avoid  all  appearance  of  recogniz- 
ing the  royal  authority.  If  beyond  this  there  is  any  design  to 
give  authenticity  and  credit  to  legal  process,  by  requiring  an 
actual  attestation  of  the  chief,  first,  or  senior  justice  of  the  court, 
the  practical  construction  which  has  uniformly  been  put  on  this 
provision  of  the  Constitution  has  wholly  defeated  that  object; 
for  the  ordinary  process  of  the  court  never  in  fact  bears  the 
actual  signature  of  the  chief  justice,  but  his  name  is  printed  into 
the  blank  writs  before  they  are  delivered  out  of  the  clerk's  office. 
The  teste  of  the  writ  is  therefore  in  practice  a  mere  matter  of 
form. 

A  writ  which  issues  without  the  proper  teste  is  not  in  terms 
declared  by  the  Constitution  to  be  void,  and  we  think  is  not  to 
be  held  so  by  construction.  In  the  same  article  of  the  Constitu- 
tion writs  are  required  to  be  signed  by  the  clerk,  but  a  writ  is 
not  void  because  it  wants  the  signature  of  the  clerk,  and  the  ob- 
jection will  be  overruled,  if  not  seasonably  made.  Lovell  v.  Sa- 
bine, 15  N.  H.  37. 

In  Massachusetts,  upon  the  construction  of  a  similar  provision 
in  their  Constitution,  it  has  been  decided  that  the  want  of  a 


16  PROCESS.  [Chap.  I. 

proper  teste  js  mere  matter  of  form,  aud  must  be  taken  advan- 
tage of  by  seasonable  objection  otherwise  it  will  be  held  to  have 
been  waived.    Ripley  v.  Warren,  2  Pick.  592. 

In  this  case  the  want  of  a  proper  teste  did  not  make  the  writ 
void.  The  plea  in  abatement  was  defective  in  form,  and  over- 
ruled. The  motion  to  quash  the  writ  was  addressed  to  the  dis- 
cretion of  the  court,  and  that  discretion  was  properly  exercised 
by  denying  the  motion.  As  a  general  rule,  a  motion  to  quash  a 
writ  for  a  cause  which  might  be  taken  advantage  of  by  plea  in 
abatement,  must  be  made  within  the  time  limited  for  filing  pleas 
in  abatement.    Trafton  v.  Rogers,  13  Maine  315. 

Our  practice  requires  such  pleas  to  be  filed  within  the  first 
four  days  of  the  first  term,  and  the  Court  of  Common  Pleas 
were  well  warranted  in  holding  that  the  defendants  had  waived 
their  right  to  insist  on  the  objection,  by  neglecting  to  make  the 
motion  until  the  second  term. 

Even  if  the  plea  in  abatement  had  been  sufficient,  or  the  mo- 
tion to  quash  had  been  seasonably  made,  the  writ  might  have 
been  amended,  for  it  was  not  void,  and  the  court  had  jurisdic- 
tion ;  as  we  understand  to  have  been  held  in  Reynolds  v.  Dam- 
rell,  decided  in  Hillsborough  County,  July,  1849,  and  not  re- 
ported. 

We  have  not  overlooked  the  case  of  Hutchins  v.  Edson,  1 
N.  H.  139,  in  which  it  was  held  that  a  writ  of  execution,  not 
under  the  seal  of  the  court,  was  void.  The  general  language 
used  in  that  case  might  tend  to  the  conclusion  that  writs  of 
mesne  as  well  as  final  process,  were  void,  unless  under  the  seal 
of  the  court.  It  is  obvious,  however,  that  there  is  an  important 
distinction  between  the  two  kinds  of  writs,  because  to  a  writ  of 
final  process  the  defendant  has  no  opportunity  to  object,  by  plea 
or  motion,  that  it  wants  a  seal  or  other  constitutional  requisite ; 
whereas  in  the  case  of  mesne  process  he  may  plead  the  defect, 
or  make  it  the  ground  of  motion ;  and  it  may  perhaps  be  found, 
when  a  case  shall  arise  which  presents  the  question,  that  the  doc- 
trine of  Hutchins  v.  Edson  ought  not  to  be  extended  beyond  the 
point  expressly  decided.  Foot  v.  Knowles,  4  Met.  386 ;  Brewer 
V.  Sibbley,  13  Metcalf  175 ;  People  v.  Dunning,  1  Wendell  17 ; 
Jackson  v.  Brown,  4  Cowen  550. 


Sec.  1.]  GARLAND   v.. BRITTON.  17 

GARLAND  v.  BRITTON. 

12  Illinois,  232.     [1850.] 

This  was  a  bill  to  foreclose  a  mortgage.  The  process  served 
was  not  attested  by  any  seal.  At  the  return  term  the  bill  was 
taken  for  confessed,  and  a  decree  was  entered  by  Treat,  Justice, 
at  November  term,  1847.  The  plaintiff  in  error  now  seeks  to 
reverse  the  judgment  of  the  Circuit  Court  and  assigns  for  error 
the  want  of  a  seal  to  the  summons. 

Treat,  C.  J,  This  was  a  suit  in  chancery  to  foreclose  a  mort- 
gage. The  summons  issued  and  served  on  the  defendant  was  not 
under  the  seal  of  the  court.  The  bill  was  taken  for  confessed, 
and  a  decree  of  foreclosure  entered.  The  defendant  sued  out  a 
writ  of  error.  The  statute  declares  that  "all  process  issuing 
from  the  said  Circuit  Courts  shall  be  sealed  with  the  judicial  seal 
which  shall  be  provided  for  that  purpose ;  but  in  case  there  shall 
not  be  a  judicial  seal  the  clerk  shall  affix  his  private  seal  until 
a  public  one  shall  be  provided."  R.  S.,  ch.  29,  sec.  40.  This 
statute  is  imperative  in  its  requirements.  If  a  court  has  a  judi- 
cial seal  it  must  be  affixed  to  all  of  its  process ;  if  it  has  not,  the 
clerk  must  use  his  private  seal,  but  he  ought  in  such  case  to 
certify  that  no  public  seal  has  been  provided,  for  the  presump- 
tion is  that  every  court  has  a  seal.  The  writ  in  this  case  did  not 
purport  to  be  under  the  seal  of  the  court  nor  the  private  seal  of 
the  clerk.  It  was,  therefore,  without  validity,  and  the  service 
of  the  same  was  without  effect.  The  defendant  not  being  before 
the  court,  by  the  service  of  process,  or  by  appearing  in  the  case, 
the  decree  was  unauthorized  and  must  be  reversed.  See  Hannum 
V.  Thompson,  1  Scammon,  238,  and  Anglin  v.  Nott,  ibid,  395. 

Decree  reversed.^ 

1  Semble,  same  result  in  ease  sum-  summons   was    not   sealed.      In    In- 

mons  is  not  signed  by  the  clerk.  Her-  surance  Co.  v.  Hallock,  6  Wall.    (U. 

nandes    v.    Drake,    81    111.    34.      In  S.)    536,  an  unsealed   order  of   sale 

Choate   v.    Spencer,    13    Mont.    127,  was  held  void. 

a  judgment  by  default  was  held  sub-  But  see,   Strong  v.  Catlin,  3  Pin- 

ject  to  collateral  attack  where  the  ney,  121,  post  188. 


18  PROCESS.  [Chap.  I. 

RUDD  V.  THOMPSON. 

22  Arkansas,  363.     {I860.] 

Mr.  Chief  Justice  English  delivered  the  opinion  of  the  court. 

The  defendants  in  error  recovered  a  judgment  by  default,  in 
the  Desha  Circuit  Court,  against  the  plaintiffs  in  error  for  $25,000 
debt  and  $1,500  damages. 

The  counsel  for  the  defendants  admits  that  the  recovery,  upon 
the  declaration,  was  excessive,  offers  to  remit  the  excess,  and 
asks  an  affirmance  under  the  rule,  etc. 

But  two  objections  are  taken  to  the  writ,  which  are  founded 
in  fact,  as  it  appears  in  the  transcript  before  us:  1st,  that  it 
lias  no  seal,  and  2nd,  that  it  was  directed  to  Henry  Smith,  the 
sheriff,  and  was  served  and  returned,  as  appears  from  the  return 
endorsed  by  Thomas  McKallister,  the  coroner  of  the  county. 

1.  It  has  been  the  practice  of  this  court  to  reverse  judgments 
by  default  in  cases  where  the  summons  was  without  the  official, 
seal  of  the  clerk,  and  such  writs  were  treated  as  void.  But  in 
Mitchell  V.  Conley,  13  Ark.  418,  the  court,  upon  a  review  of  its 
previous  decisions,  held  that  writs  were  not  void  for  such  defects, 
but  voidable,  and  that  the  court  below  possessed  the  power  to 
amend  them  on  application. 

Here  no  application  was  made  to  amend,  and  the  defect  in  the 
writ  is  cause  of  reversal. 

2.  The  writ  being  directed  to  the  sheriff,  the  coroner  had  no 
authority  to  execute  it.  Hughes  v.  Martin,  1  Ark.  386.  If  the 
sheriff  was  disqualified  to  serve  the  writ,  there  should  have  been 
an  affidavit  of  the  fact,  and  the  writ  directed  to  the  coroner. 
Gould's  Dig.,  chap.  38,  sec.  7,  8;  14  Ark.  59. 

The  judgment  must  be  reversed,  the  cause  remanded  and  the 
plaintiff  in  error  must  be  regarded  as  in  court  under  the  rule, 
etc. 


PEASLEE  V.  HABERSTRO. 

15  Blatchford  (U.  8.  C.  C),  472.     [1879.] 

Wallace,  J.     The  motion  to  set  aside  the  summons  in  this 
action  must  be  granted,  upon  the  ground  that  the  summons  was 


Sec.  1.]  PEASLEE  V.   HABERSTRO.  19 

not  signed  by  the  clerk  or  under  the  seal  of  the  court.  Section 
911  of  the  Revised  Statutes  of  the  United  States  prescribes,  that 
"all  writs  and  processes  issuing  from  the  courts  of  the  United 
States  shall  be  under  the  seal  of  the  court  from  which  they 
issue,  and  shall  be  signed  by  the  clerk  thereof. ' '  This  provision 
is  not  inconsistent  with,  and  therefore,  is  not  repealed  by,  the 
subsequent  Act  of  Congress  (Act  of  June  1st,  1872,  §  5,  17  U.  S. 
Stat,  at  Large,  197),  now  embodied  in  section  914  of  the  Revised 
Statutes,  which  enacts  that  "the  practice,  pleadings  and  forms 
and  modes  of  proceeding  in  civil  causes,  other  than  equity  and 
admiralty  causes,  in  the  Circuit  and  District  courts,  shall  con- 
form, as  near  as  may  be,  to  the  practice,  pleadings  and  forms 
and  modes  of  proceeding  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  State  within  which  such  Circuit  or 
District  Courts  are  held."  Giving  due  effect  to  the  later  act, 
the  practice,  and  forms  and  modes  of  proceeding,  in  the  courts 
of  the  United  States,  in  common  law  actions,  is  to  conform  to, 
and  be  regulated  by,  that  of  the  state  courts,  when  there  is  no 
statute  of  the  United  States  prescribing  different  practice  or 
forms  or  modes  of  procedure.  When  the  statutes  of  the  United 
States  are  silent,  the  practice  of  the  state  courts  will  prevail, 
but,  when  those  statutes  speak,  they  are  controlling.  If  the 
summons  in  this  case  had  been  signed  by  the  clerk,  it  could  be 
amended  as  regards  the  seal.^  As  it  is,  there  is  no  summons  in 
the  nature  of  process  known  to  this  court.  The  summons  is  set 
aside. 


(b)  Notice. 
U.  S.  Compiled  Statutes,  1913. 

§  1039.  (JuD.  code,  §  57.)  Absent  dependants  in  suits  to 
enforce  liens,  .remove  clouds  on  titles,  etc.  "When  in  any 
suit  commenced  in  any   District   Court   of  the   United   States 

1  See   Jump   v.   McClurg,   35   Mo.  At    common    law,    signing    by    the 

193,  allowing  an  amendment  of  an  filazer  does  not  appear  to  have  been 

unsealed  writ  of   attachment.      See  necessary.     Frost  v.  Eyles,  1  H.  Bl. 

also,  Redmond  v.   Mullinax,   113  N.  120. 
C.  505;  Baker  v.  Swift,  87  Ala.  530. 


20  PROCESS.  [Chap.  I. 

to  enforce  any  legal  or   equitable  lien  upon   or   claim  to,  or 
to  remove   any  incumbrance   or  lien   or   cloud  upon  the   title 
to  real   or  personal  property  within   the   district  where  such 
suit  is  brought,  one  or  more  of  the  defendants  therein  shall 
not  be  an  inhabitant  of  or  found  within  the  said  district,  or  shall 
not  voluntarily  appear  thereto,  it  shall  be  lawful  for  the  court 
to  make  an  order  directing  such  absent  defendant  or  defendants 
to  appear,  plead,  answer,  or  demur  by  a  day  certain  to  be  desig- 
nated, which  order  shall  be  served  on  such  absent  defendant  or 
defendants,  if  practicable,  wherever  found,  and  also  upon  the 
person  or  persons  in  possession  or  charge  of  said  property,  if 
any  there  be;  or  where  such  personal  service  upon  such  absent 
defendant  or  defendants  is  not  practicable,  such  order  shall  be 
published  in  such  manner  as  the  court  may  direct,  not  less  than 
once  a  week  for  six  consecutive  weeks.    In  case  such  absent  de- 
fendant shall  not  appear,  plead,  answ^er,  or  demur  Avithin  the 
time  so  limited,  or  within  some  further  time,  to  be  allowed  by 
the  court,  in  its  discretion,  and  upon  proof  of  the  service  or 
publication  of  said  order  and  of  the  performance  of  the  direc- 
tions contained  in  the  same,  it  shall  be  lawful  for  the  court  to 
entertain  jurisdiction,  and  proceed  to  the  hearing  and  adjudi- 
cation of  such  suit  in  the  same  manner  as  if  such  absent  defend- 
ant had  been  served  wnth  process  wdthin  the  said  district;  but 
said  adjudication  shall,  as  regards  said  absent  defendant  or  de- 
fendants without  appearance,   affect  only  the  property  which 
shall  have  been  the  subject  of  the  suit  and  under  the  jurisdiction 
of  the  court  therein,  within  such  district;  and  when  a  part  of 
the  said  real  or  personal  property  against  which  such  proceed- 
ings shall  be  taken  shall  be  within  another  district,  but  within 
the  same  state,  such  suit  may  be  brought  in  either  district  in  said 
state;  Provided,  however,  that  any  defendant  or  defendants  not 
actually  personally  notified  as  above  provided  may,  at  any  time 
within  one  year  after  final  judgment  in  any  suit  mentioned  in 
this  section,  enter  his  appearance  in  said  suit  in  said  District 
Court,  and  thereupon  the  said  court  shall  make  an  order  setting 
aside  the  judgment  therein  and  permitting  said  defendant  or 
defendants  to  plead  therein  on  payment  by  him  or  them  of  such 
costs  as  the  court  shall  deem  just :  and  thereupon  said  suit  shall 
be  proceeded  with  to  final  judgment  according  to  law. 


Sec,  1.]  FORM    AND   REQUISITES.  21 

Revised  Statutes  op  Missouri,  1909. 

§  1770.  Orders  op  publication.  In  suits  in  partition,  divorce, 
attachment,  suits  for  the  foreclosure  of  mortgages  and  deeds  of 
trust,  and  for  the  enforcement  of  mechanics'  liens  and  all  other 
liens  against  either  real  or  personal  property,  and  in  all  actions 
at  law  or  in  equity,  which  have  for  their  immediate  object  the 
enforcement  or  establishment  of  any  lawful  right,  claim  or  de- 
mand to  or  against  any  real  or  personal  property  within  the 
jurisdiction  of  the  court,  if  the  plaintiff  or  other  person  for  him 
shall  allege  in  his  petition,  or  at  the  time  of  filing  same,  or  at 
any  time  thereafter  shall  tile  an  affidavit  stating,  that  part  or 
all  of  the  defendants  are  non-residents  of  the  state,  or  is  a  cor- 
poration of  another  state,  kingdom  or  country,  and  cannot  be 
served  in  this  state  in  the  manner  prescribed  in  this  chapter,  or 
have  absconded  or  absented  themselves  from  their  usual  place 
of  abode  in  this  state,  or  that  they  have  concealed  themselves  so 
that  the  ordinary  process  of  law  cannot  be  served  upon  them, 
the  court  in  which  said  suit  is  brought,  or  in  vacation  the  clerk 
thereof,  shall  make  an  order  directed  to  the  non-residents  or  ab- 
sentees, notifying  them  of  the  commencement  of  the  suit,  and 
stating  briefly  the  object  and  general  nature  of  the  petition,  and, 
in  suits  in  partition,  describing  the  property  sought  to  be  par- 
titioned, and  requiring  such  defendant  or  defendants  to  appear 
on  a  day  to  be  named  therein  and  answer  the  petition,  or  that 
the  petition  will  be  taken  as  confessed.  If  in  any  case  there 
shall  be  sufficient  time  to  make  publication  to  the  first  term,  the 
order  shall  be  made  returnable  to  the  next  term  thereafter,  that 
will  allow  sufficient  time  for  such  publication. 

§  1772.  Publication  to  issue  on  return  op  non  est.  When, 
in  any  of  the  cases  contained  in  section  1770,  summons  shall  be 
issued  against  any  defendant,  and  the  sheriff  to  whom  it  is  di- 
rected shall  make  return  that  the  defendant  or  defendants  can- 
not be  found,  the  court,  being  first  satisfied  that  process  cannot 
be  served,  shall  make  an  order  as  is  required  in  said  section.^ 

1  For  corresponding  provisions  in       11,   §22,  Chap.   110,  §8;  Wisconsin 
Illinois  and  Wisconsin,   see  Illinois,       Statutes,   1911,   §§2639,   2640. 
R.   S.   1913,   Chap.   22,   §12;    Chap. 


22  PROCESS.  [Chap.  I. 

DOUGLAS  V.  FORREST. 
4  BingJuim,  686.     [1828.] 

Best,  C.  J.  This  was  an  action  brought  by  the  assignees  of 
Stein  &  Co.,  bankrupts,  against  the  executor  of  the  will  of  John 
Hunter. 

On  the  31st  of  May,  1799,  the  testator  acknowledged  himself 
to  be  indebted  to  Stein  &  Co.  in  the  sum  of  £447  6s  3d ;  and  on 
the  11th  of  June  in  the  same  year,  he  acknowledged  that  he 
owed  £75  to  Robert  Smith,  one  of  the  bankrupts,  and  one  of  the 
firm  of  Stein  &  Co.  These  debts  were  contracted  in  Scotland, 
of  which  country  the  deceased  was  a  native,  and  in  which  he 
had  a  heritable  property.  Shortly  after  the  year  1799  the  de- 
ceased went  to  India.  He  died  in  India  in  1817,  having  never 
revisited  Scotland. 

On  the  25th  of  February,  1802,  two  decrees  were  pronounced 
in  the  Court  of  Sessions  in  Scotland  against  the  deceased,  one 
at  the  instance  of  Stein  &  Co.,  and  the  other  at  the  instance  of 
Robert  Smith.    In  the  first  of  these  the  deceased  was  ordered  to 

pay  to  Stein  &  Co.  £447  6s  3d,  with  interest,  from  the day 

of ,  besides  expenses  of  process,  etc.    In  the  second  decree 

the  deceased  was  ordered  to  pay  Robert  Smith  the  sum  of  £75, 

with  interest,  from  the day  of ,  besides  expenses  of 

process,  etc.  It  appeared  from  these  decrees  that  the  deceased 
was  out  of  Scotland  at  the  time  the  proceedings  were  instituted 
in  these  causes.  He  never  had  any  notice  of  those  proceedings. 
The  decrees  stated  that  the  deceased  had  been  (according  to  the 
law.  of  Scotland)  summoned  at  the  market  cross  of  Edinburgh, 
and  at  the  pier  and  shore  of  Leith.  A  Scotch  advocate  proved 
that,  by  the  law  of  Scotland,  the  Court  of  Session  might  pro- 
nounce judgment  against  a  native  Scotchman  who  had  heritable 
property  in  that  country  for  a  debt  contracted  in  Scotland,  al- 
though the  debtor  had  no  notice  of  any  of  the  proceedings,  and 
was  out  of  Scotland  at  the  time.  After  such  proclamations  as 
were  mentioned  in  these  decrees  had  been  made,  the  same  wit- 
ness proved  that  a  person  against  whom  such  a  decree  was  pro- 
nounced, might,  at  any  time  within  forty  years,  dispute  the 
merits  of  such  decree;  but  that  after  the  expiration  of  forty 
years,  it  was  conclusive  against  him  and  all  who  claimed  under 
him. 

The  questions  to  be  decided  are,  first,  whether  an  action  can 


Sec.  1.]  DOUGLAS  v.  forrest.  23 

be  maintained  in  England  on  these  judgments  of  the  Court  of 
Session  in  Scotland.  Secondly,  whether  the  replication  is  an  an- 
swer to  the  pleas  of  the  statute  of  limitations. 

On  the  first  question  we  agree  with  the  defendant's  counsel 
that  if  these  decrees  are  repugnant  to  the  principles  of  universal 
justice  this  court  ought  not  to  give  effect  to  them;  but  we  think 
that  these  decrees  are  i>erfectly  consistent  with  the  principles  of 
justice.  If  we  held  that  they  were  not  consistent  with  the  prin- 
ciples of  justice,  we  should  condemn  the  proceedings  of  some  of 
our  own  courts. ^  If  a  debt  be  contracted  within  the  city  of  Lon- 
don, and  the  creditor  issues  a  summons  against  the  debtor,  to 
which  a  return  is  made,  that  the  debtor  hath  nothing  within  the 
city  by  which  he  may  be  summoned,  or,  in  plainer  words,  hath 
nothing  by  the  seizure  of  which  his  appearance  may  be  enforced, 
goods  belonging  to  the  debtor  in  the  hands  of  a  third  person,  or 
money  due  from  a  third  person  to  the  debtor,  may  be  attached ; 
and  unless  the  debtor  appears  within  a  year  and  a  day,  and  dis- 
putes his  debt,  he  is  forever  deprived  of  his  property  or  the  debts 
due  to  him. 

In  such  cases  the  defendant  may  be  in  the  East  Indies  whilst 
the  proceedings  are  going  on  against  him  in  a  court  in  London, 
and  may  not  know  that  any  such  proceedings  are  instituted. 
Instead  of  the  forty  years  given  by  the  Scotch  law,  he  has  only 
one  year  given  to  him  to  appear  and  prevent  a  decision  that 
finally  transfers  from  him  his  property.  Lord  Chief  Justice  De 
Grey  thought  this  custom  of  foreign  attachment  was  an  unrea- 
sonable one,  but  it  has  existed  from  the  earliest  times  in  London, 
and  in  other  towns  in  England,  and  in  many  of  our  colonies  from 
their  first  establishment.  Lord  Chief  Justice  De  Grey  and  the 
Court  of  Common  Pleas,  after  much  consideration,  decided 
against  the  validity  of  the  attachment,  according  to  the  report 
in  3  Wilson,  297,  because  the  party  objecting  to  it  had  never 
been  summoned  or  had  notice.  The  report  of  the  same  case  in 
2  Blackstone,  834,  shows  that  the  court  did  not  think  a  personal 
summons  necessary,  or  any  summons  that  could  convey  any  in- 
formation to  the  person  summoned,  but  a  summons  with  a  return 
of  nihil;  that  is,  such  a  summons  as  I  have  mentioned,  namely, 
one  that  shows  that  the  debtor  is  not  within  the  city,  and  has  noth- 

1  For  former  chancery  practice, 
•ee  Daniel's  Chancery  Practice,  p. 
449. 


24  PROCESS.  [Chap,  I. 

iug  there,  by  the  seizing  of  which  he  may  be  compelled  to  appear. 
The  54  G.  3,  ch.  137,  not  only  recognizes  the  practice  on  which 
these  decrees  are  founded,  as  being  according  to  the  law  of  Scot- 
land, but  enacts  that  on  notices  being  given  at  the  market  cross 
at  Edinburgh,  and  on  the  pier  and  shore  of  Leith,  to  debtors  out 
of  the  kingdom,  in  default  of  their  appearance  the  creditors  may 
issue  a  sequestration  against  their  effects.  Can  we  say  that  a 
practice  which  the  legislature  of  the  United  Kingdom  has  recog- 
nized and  extended  to  other  cases  is  contrary  to  the  principles 
of  justice  ? 


INDIANA  &  ARKANSAS  LUMBER  CO.  v.  BRINKLEY. 
164  Fed.  Rep.  963  (C.  C.  A.  1908). 

The  defendant  appealed  from  a  decree  holding  void  certain 
judgments  of  the  state  court  enforcing  special  assessment  liens. 

Sanborn,  Circuit  Judge.  The  basic  principle  of  the  juris- 
prudence of  the  English-speaking  nations  is  that  no  person  shall 
be  deprived  of  his  life,  liberty,  or  property  without  due  process 
of  law ;  that  is  to  say,  without  notice  and  an  opportunity  to  be 
heard  before  the  decision  respecting  the  justice  of  the  disposition 
of  his  life,  liberty,  or  property  that  is  sought.  Const.  U.  S. 
Amend.  14;  Const.  Ark.,  art.  2,  §  21;  2  Kent's  Comm.  13;  Alex- 
ander V.  Gordon,  101  Fed.  91,  96,  98,  41  C.  C.  A.  228.  In  the 
absence  of  legislative  power  to  proceed  otherwise,  there  is  but 
one  way  to  make  a  person  a  party  to  a  suit  or  to  direct  to  him 
an  adequate  notice  of  a  proceeding  to  deprive  him  of  his  prop- 
erty or  to  bring  his  person  within  the  jurisdiction  of  a  court, 
and  that  is  to  direct  the  notice  to  him  by  his  name  and  to  serve 
it  upon  him  in  person.  And  where  the  authority  is  granted  by 
a  statute  to  notify  him  otherwise  on  certain  conditions,  those 
conditions  must  be  fulfilled,  the  method  prescribed  must  be  sub- 
stantially followed  or  the  court  fails  to  obtain  jurisdiction  of  his 
person,  and  its  decree  against  him  is  ineffectual  and  void.  There 
was  a  provision  of  the  statutes  of  Arkansas  that,  upon  condi- 
tion that  it  appeared  in  the  complaint  that  the  heirs  of  a  de- 
ceased person  or  the  owners  of  property  to  be  disposed  of  in  a 
suit  were  unknown,  a  warning  order  might  be  made  by  the  clerk 
against  such  unknown  heirs  or  owners.    But  there  was  no  other 


Sec.  1.]  IND.   &  ARK.  LBR.   CO.  V.   BRINKLEY.  25 

provision  in  the  legislation  of  Arkansas  whereby  the  heirs  of  a 
deceased  person  might  be  brought  within  the  jurisdiction  of  one 
of  its  courts  in  a  personal  action  without  making  them  parties  to 
the  suit  by  name.  The  expression  of  one  method  of  obtaining 
constructive  service  of  such  .parties  is  the  exclusion  of  all  others, 
and  this  legislation  was  a  denial  of  authority  to  obtain  jurisdic- 
tion of  unknown  heirs  or  owners  by  constructive  service  in  any 
other  way  than  that  there  prescribed.  Tlie  plaintiff  in  the  suit 
to  enforce  the  levee  assessment  either  knew,  or  he  did  not  know, 
who  the  heirs  of  R.  C.  Brinkley  were.  If  he  knew,  there  was  but 
one  way  in  which  he  could  bring  them  within  the  jurisdiction  of 
the  court,  and  that  was  by  making  them  defendants  by  their  true 
names  both  in  his  complaint  and  in  his  warning  order,  and  by 
directing  the  order  to  them  by  those  names,  for  there  was  no 
authority  granted  by  statute,  by  the  common  law,  or  by  the  prac- 
tice of  the  courts  to  obtain  jurisdiction  of  a  defendant,  whose 
name  was  known,  in  a  personal  suit  in  any  other  way.  There 
was  no  statutory  or  other  authority  to  obtain  jurisdiction  of  such 
a  defendant  in  a  personal  suit  by  publishing  a  notice  to  a  class 
of  which  he  might  be  a  member  without  naming  him.  If,  on 
the  other  hand,  the  plaintiff  did  not  know  the  names  of  those 
heirs,  there  was  only  one  way  in  which  he  could  bring  them 
within  the  jurisdiction  of  the  court,  and  that  was  by  averring 
that  fact  in  his  complaint  and  procuring  a  warning  order  di- 
rected to  them  as  unknown  heirs.  He  pursued  neither  course. 
He  did  not  make  the  defendant,  or  the  other  heirs  of  R.  C.  Brink- 
ley,  deceased,  defendants  by  their  names,  and  the  court  acquired 
no  jurisdiction  of  them  if  their  names  were  known  to  him,  and 
he  did  not  allege  in  his  complaint  that  their  names  were  un- 
known to  him,  and  the  court  acquired  no  jurisdiction  of  them  if 
their  names  were  not  known  to  him.  The  inevitable  conclusion 
is  that  where,  in  a  suit  in  personam  in  chancery,  the  only  author- 
ity to  obtain  jurisdiction  of  persons  by  publishing  a  warning  or- 
der directed  to  heirs  of  a  deceased  person  without  naming  them 
is  conditioned  by  the  appearance  in  the  complaint  of  the  aver- 
ment that  their  names  are  unknown,  the  court  acquires  no  juris- 
diction of  them  by  the  issue  and  publication  of  such  an  order  in 
the  absence  of  the  requisite  averment.  ^ 

1  See  also  Manning  v.  Heady,  64 
Wis.  630. 


26  PROCESS.  [Chap.  I. 

KENNEDY  v.  THE  NEW  YORK  LIFE  INSURANCE  CO. 

101  New  Ym-k,  487.     [1886.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  made  February  12,  1884, 
which  reversed  a  judgment  in  favor  of  defendant,  entered  upon 
a  decision  of  the  court  on  trial  at  Special  Term.  (Reported  be- 
low, 32  Hun.  35.) 

This  action  was  brought  to  recover  damages  for  an  alleged 
breach  of  contract  by  defendant  to  sell  and  convey  to  plaintiff 
certain  premises. 

Defendant  acquired  title  under  a  foreclosure  sale ;  it  was  ready 
and  willing  to  convey,  but  plaintiff  declined  to  accept  a  con- 
veyance, claiming  defendant's  title  was  defective,  in  that  the 
summons  in  the  foreclosure  suit  was  served  by  publication,  and 
that  the  affidavit  upon  which  the  order  for  such  service  was  made 
was  insufficient  to  give  the  court  jurisdiction. 

Miller,  J.  The  right  of  the  plaintiff  to  recover  in  this  action 
depends  upon  the  construction  to  be  placed  on  section  135  of  the 
Code  of  Procedure. 

In  Carleton  v.  Carleton  (85  N.  Y.  313),  upon  which  the  re- 
spondent relies,  the  affidavit  stated,  ''that  defendant  has  not  re- 
sided in  the  State  of  New  York  since  March,  1877,  and  deponent 
is  advised  and  believes  is  now  a  resident  of  San  Francisco,  Cali- 
fornia," and  it  was  held  that  this  was  not  sufficient  under  the 
Code  of  Procedure  (section  135)  to  authorize  the  granting  of 
the  order;  that  it  was  merely  an  allegation  of  non-residence, 
and  did  not  tend  to  establish  that  defendant  could  not,  after  due 
diligence,  be  found  within  the  state. 

It  will  be  seen  that  in  the  case  cited  the  affidavit  as  to  resi- 
dence is  upon  information  and  belief  and  does  not  show  posi- 
tively and  distinctly  that  the  defendant  was  a  non-resident. 
Considerable  stress  is  laid  upon  this  fact,  and  in  the  opinion  it 
is  said:  "Cases  may  arise  where  the  proof  of  residence  in  a 
distant  state  at  the  very  time,  and  of  an  absolute  location  there, 
would  be  so  strong  and  conclusive  as  to  render  it  entirely  ap- 
parent that  no  act  of  diligence  would  be  of  any  avail ;  and  if  the 
affidavit  here  had  stated  positively  and  distinctly  that  the  de- 
fendant was  at  the  time  not  only  a  resident  of  the  state  of  Cali- 
fornia, but  was  then  actually  living  in  that  state,  there  would  be 


Sec.  1.]  KENNEDY  V.  N.  T.  LIFE  INS.   CO.  27 

ground  for  claiming  that  due  diligence  would  be  unavailing." 
It  would  thus  seem  that  where  the  proof  of  non-residence  is 
clear  and  conclusive,  and  that  the  defendant  is  living  out  of  the- 
state  and  in  a  distant  state,  there  may  be  strong  reasons  for  hold- 
ing that  proof  of  due  diligence  is  not  required  and  a  different 
result  arrived  at. 

The  case  under  consideration  differs  somewhat  from  Carleton 
V.  Carleton  (supra).  The  affidavit  here  states  that  the  defend- 
ants "cannot,  after  due  diligence,  be  found  within  this  state" 
(they  being  residents  of  other  states  as  therein  named),  and 
"that  the  summons  herein  was  duly  issued  for  said  defendants, 
but  cannot  be  served  personally  upon  them  by  reason  of  such 
non-residence."  Here  is  a  clear  statement  that  the  defendants 
are  non-residents  of  the  state  and  reside  in  other  and  distant 
states,  and  that  the  summons  which  has  been  issued  cannot  be 
served  by  reason  thereof.  This  supplies  the  defect  in  the  affi- 
davit in  the  case  cited  in  reference  to  the  proof  of  non-residence 
and  establishes  beyond  question  the  fact,  making  the  case  consid- 
ered stronger  in  this  respect  than  the  one  cited.  The  allegation 
as  to  non-residence  is  preceded  by  the  statement  that  the  defend- 
ants cannot,  after  due  diligence,  be  found  within  this  state, 
which,  taken  in  connection  with  the  subsequent  averment  as  to 
non-residence,  may  be  considered,  we  think,  as  a  statement  either 
that  an  attempt  has  been  made  to  find  the  defendants,  or  at  least 
that  they  are  so  remotely  located  out  of  the  state  and  have  such 
a  fixed  residence  that  it  would  be  impossible  after  due  diligence 
to  find  them  within  the  state  for  the  purpose  of  serving  summons 
on  them.^ 

1  Potter,  J.,  in  McCraeken  v.  mons  by  publication.  Those  facts 
Flanagan,  127  N.  Y.  493.  "It  is,  do  not  imply  that  any  diligence  has 
from  an  examination  of  this  statute,  been  exercised  to  find  and  serve  the 
and  the  decisions  in  relation  to  it,  defendant  personally  with  process, 
pretty  evident  that  some  degree  of  It  needs  no  argument  to  show  that 
diligence  must  be  exercised  to  find  the  averment  in  the  affidavit  that 
the  party,  and  what  is  a  due  degree  the  defendant  cannot  be  found  in 
depends  upon  circumstances  sur-  the  state  does  not  tend  to  prove 
rounding  each  case,  and  that  the  the  exercise  of  due  diligence  to  find 
simple  averments  in  the  affidavit  the  defendant,  for  the  statute  in 
that  the  defendant  is  a  non-resident  question  not  only  requires  that  it  be 
and  cannot  be  found  within  the  state  stated  in  the  affidavit  that  the  de- 
are  not  alone  sufficient  to  support  fendant  cannot  be  found,  but  ex- 
an  order  for  the  service  of  a  sum-  pressly  requires   the   averment  that 


28  PROCESS.  [Chap.  I. 

The  statement  as  to  due  diligence  is  not  absolutely  an  allega- 
tion of  a  conclusion  of  law,  or  an  opinion,  but,  in  connection  with 
what  follows,  a  statement  of  facts  which  tend  to  establish  that 
due  diligence  has  been  used. 

The  two  cases  are  clearly  distinguishable,  and  we  think  the 
affidavit  here  contained  allegations  sufficient  to  call  upon  the 
judicial  mind  to  determine  whether  due  diligence  had  been  em- 
ployed to  find  the  defendants,  for  the  purpose  of  serving  the 
summons  issued.  In  granting  the  order,  the  judge  so  held,  and 
as  the  language  employed  will  bear  this  interpretation,  the  court 
should  not,  certainly  in  a  collateral  proceeding,  determine  that 
the  affidavit  was  entirely  defective  and  set  aside  the  order. 

The  order  of  the  General  Term  should  be  reversed  and  the 
judgment  of  Special  Term  affirmed. 


McKENNA  V.  COOPER. 
79  Kamsas,  847.     [1909.] 

BuRCH,  J.  In  this  case  Cooper,  the  plaintiff,  claiming  title 
under  a  sheriff's  deed,  recovered  in  ejectment  against  McKenna, 
who  claimed  under  a  tax  deed.  The  tax  deed  was  invalid,  and 
the  material  question  is  whether  the  sheriff's  deed  established 
title  sufficient  to  authorize  a  recovery  by  the  plaintiff. 

The  sheriff's  deed  was  issued  pursuant  to  foreclosure  proceed- 
ings based  upon  service  by  publication,  and  it  is  claimed  the  affi- 
davit and  notice  are  defective  in  substance.  It  is  not  necessary 
to  discuss  their  validity  in  this  respect.  The  attack  made  on 
them  is  collateral,  and  they  stand  within  the  principles  applied 
in  the  case  of  Sharp  v.  McColm,  ante,  p.  772. 

It  is  further  claimed  that  the  notice  is  void  because  it  does 
not  have  the  form  of  process,  which  must  run  in  the  name  of  the 
state  and  bear  the  signature  of  the  clerk  and  the  seal  of  the  court 
from  which  it  issues. 

' '  The  style  of  all  process  shall  be  '  The  State  of  Kansas, '  and 

he  cannot  be  found  after  due  dili-  from  the  statement  that  the  defend- 
gence.  Hence,  the  statute  forbids  ant  cannot  be  found  within  the 
that  due   diligence  may  be  implied       state." 


Sec.  1.]  MCKENNA   V.    COOPER,  29 

all  prosecutions  shall  be  carried  on  in  the  name  of  the  state." 
(Const,  art.  3,  §  17.) 

"The  style  of  all  process  shall  be  'The  State  of  Kansas.'  It 
shall  be  under  the  seal  of  the  court  from  whence  the  same  shall 
issue,  it  shall  be  signed  by  the  clerk,  and  dated  the  day  it  is 
issued."     (Civ.  Code,  §700.) 

The  word  "process"  has  many  meanings.  In  its  broadest 
sense  it  comprehends  all  proceedings  to  the  accomplishment  of 
an  end,  including  judicial  proceedings.  Frequently  its  significa- 
tion is  limited  to  the  means  of  bringing  a  party  into  court.  In 
the  constitution  process  which  at  the  common  law  would  have 
run  in  the  name  of  the  king  is  intended.  In  the  code  process 
issued  from  a  court  is  meant. 

The  legislature  may  authorize  steps  to  be  taken  involving  the 
use  of  process  the  equivalent  of  that  which  was  known  to  the  law 
of  England  and  which  formerly  ran  in  the  name  of  the  king. 
If  this  be  done  such  process  must  bear  the  style  of  the  sover- 
eignty— "The  State  of  Kansas."  But  the  legislature  in  its  dis- 
cretion may  authorize  steps  to  be  taken  involving  the  use  of 
other  means  than  process  in  the  strict  sense.  Notices  not  issuing 
from  the  court  itself,  but  given  by  some  executive  officer  or  inter- 
ested person,  may  be  employed,  and  in  such  case  the  form  of 
process  is  not  essential,  although  persons  or  property  be  sub- 
jected to  the  jurisdiction  of  a  court.  Notices  in  proceedings  by 
executors,  administrators  and  guardians  to  sell  real  estate  are 
not  process.  The  treasurer's  notices  relating  to  the  sale  and  con- 
veyance of  land  for  taxes  are  not  process,  although  the  sover- 
eignty of  the  state  is  intimately  concerned.  In  some  states  the 
original  summons  to  the  defendant  in  an  action  is  a  mere  notice 
by  the  plaintiff's  attorney,  and  hence  is  not  process  in  the  sense 
of  constitutional  or  statutory  provisions  prescribing  the  style 
and  requisites  of  process. 

"But  we  think  a  summons  is  not  process  within  the  meaning 
of  section  14,  article  6,  of  our  state  constitution.  It  is  merely  a 
notice  given  by  the  plaintiff's  attorney  to  the  defendant  that  pro- 
ceedings have  been  instituted,  and  judgment  will  be  taken  against 
him  if  he  fails  to  defend.  This  notice  is  not  issued  out  of  or 
under  the  seal  of  the  court,  or  by  the  authority  of  the  court,  or 
any  judicial  officer.  The  fact  that  the  court  acquires  jurisdic- 
tion by  its  service  does  not  prove  it  process,  for  it  is  competent 
for  the  legislature  to  provide  that  the  court  shall  acquire  juris- 


30  PROCESS.  [Chap.  I. 

diction  by  the  service  of  the  complaint  without  a  summons,  or 
in  any  other  manner  by  which  the  defendant  may  be  notified  that 
proceedings  have  been  instituted  against  him.  'Process,'  in  a 
large  acceptation,  is  nearly  synonymous  with  proceedings,  and 
means  the  entire  proceedings  in  an  action  from  the  beginning  to 
the  end.  In  a  stricter  sense  it  is  applied  to  the  several  judicial 
writs  issued  in  an  action.  7  Comyn's  Dig.  120;  3  Black.  Com. 
279  et  seq. ;  Bouvier's  Law  Die.  In  this  last  sense  it  is  mani- 
festly used  in  the  constitution,  and  when  used  in  this  sense  we 
believe  it  only  applies  to  judicial  instruments  issued  by  a  court, 
or  other  competent  jurisdiction  and  returnable  to  the  same." 
(Hanna  et  al.  v.  Russell  et  al.  12  Minn.  80,  85.) 

The  meaning  of  the  constitution  of  Illinois,  which  provides 
that  all  process  shall  run  in  the  name  of  "The  People  of  the 
State  of  Illinois, ' '  is  thus  explained : 

"This  object  is  manifest.  It  was  to  provide  a  name  or  title 
by  which  the  sovereign  power  of  the  state  should  be  designated. 
In  England  the  king  is  supposed  to  be  the  fountain  of  justice 
and  the  source  of  power,  and  the  sovereign  power  is  there  desig- 
nated by  his  name  and  title.  In  Kentucky,  and  some  of  the 
other  states,  it  is  'The  Commonwealth;'  in  Missouri,  and  some 
others,  it  is  'The  State.'  Here  it  is  'The  People,'  etc.  Where, 
by  the  law  of  England,  whence  we  have  mainly  borrowed  our 
system  of  jurisprudence,  writs  or  process  are  issued,  or  other 
proceedings  are  had  expressly  in  the  name  of  the  king,  here  they 
should  run  in  the  name  of  'The  People.'  The  latter  is  to  be 
used  instead  of  the  former.  The  meaning  is  not  that  everything 
shall  be  done  expressly  in  the  name  of  'The  People,'  but  that 
nothing  shall  be  done  in  any  other  name.  Whenever  the  name 
of  the  sovereign  power  is  invoked  or  expressed,  that  shall  be  its 
designation."     (Curry  v.  Hinman,  11  111.  420,  423.) 

(See,  also,  Leas  &  M'Vitty  v.  Merriman,  132  Fed.  510;  Gilmer 
V.  Bird,  15  Fla.  410 ;  William  Tweed  v.  Horace  Metcalf ,  4  Mich. 
579 ;  Case  I\Ianfg.  Co.  v.  Perkins,  106  Mich.  349,  64  N.  W.  201 ; 
Piano  Manfg.  Co.  v.  Kaufert,  86  Minn.  13,  89  N.  W.  1124; 
Brooks  V.  Nickel  Syndicate,  24  Nev.  311,  53  Pac.  597;  Bailey  v. 
Williams,  6  Ore.  71 ;  Town  of  Davis  v.  Davis,  40  W.  Va.  464,  21 
S.  E.  906;  Porter  v.  Vandercook  and  others,  11  Wis.  70.) 

Section  73  of  the  code  provides  that  the  party  to  an  action 
may  make  service  by  publishing  the  necessary  notice,  and  no 
form  of  notice  is  prescribed.    Therefore  the  legislature  has  dis- 


Sec.  1.]  TURNER  V.   GREGORY.  31 

tinguished  this  notice  from  the  process  referred  to  in  section  700 
of  the  code,  quoted  above,  and  from  the  process  spoken  of  in  the 
constitution.  (Nichols  v.  Burlington  and  Louisa  County  Plank 
Road  Company,  4  G.  Greene  (Iowa),  42.) 

The  conclusion  must  be  that  the  notice  employed  in  obtaining 
service  by  publication  is  not  process  within  the  meaning  of  the 
constitution  or  statute,  need  not  bear  the  style  of  ' '  The  State  of 
Kansas,  "1  need  not  bear  the  seal  of  the  court  in  which  the 
action  is  pending,  and  need  not  be  signed  or  issued  by  the  clerk 
of  such  court. 

The  proceedings  are  sufficient  to  sustain  the  sheriff's  deed,  and 
the  judgment  of  the  district  court  is  affirmed. 


TURNER  V.  GREGORY. 

151  Missouri,  101.     [1899.] 

Gantt,  p.  J.  This  is  an  action  in  ejectment  for  one  hundred 
and  twenty  acres  of  land  in  the  northern  part  of  Bates  county. 
Benjamin  F.  Metzler  is  the  common  source  of  title. 

By  warranty  deed  of  April  18,  1878,  Metzler  and  wife  con- 
veyed the  land  in  suit  to  Singleton  V.  Turner  and  that  convey- 
ance was  recorded  April  20,  1878,  in  the  recorder's  office  of 
Bates  county.  The  land  was  swamp  land  and  was  never  occu- 
pied by  Turner.  Metzler  and  wife  resided  in  Johnson  county, 
Missouri,  and  Singleton  V.  Turner  resided  in  Maraposa  county, 
California. 

The  plaintiff  testified :  ' '  My  name  is  Singleton  Vaughn  Tur- 
ner. I  live  in  California  and  was  living  there  when  I  received 
the  deed  to  the  land  in  suit,  from  Metzler  and  wife.  I  am  the 
person  mentioned  in  said  deed,  the  original  of  which  I  have 
mailed  to  my  attorneys  at  Butler,  Missouri.  I  formerly,  prior 
to  coming  to  California,  lived  in  Holden,  Johnson  county,  Mis- 
souri, some  fifteen  miles  from  the  land  in  suit.  While  living  in 
Holden  I  was  usually  called  Vaughn  Turner  and  the  same  is  true 
in  California  where  I  reside.  In  signing  papers  I  have  usually 
signed  my  name  S.  V.  Turner."    On  cross-examination,  he  says: 

1  Accord:   Bank  v.  Hunt,  93  Ky. 
67. 


32  PROCESS.  [Chap.  I. 

"Vaughn  Turner  has  been  the  name  by  which  I  have  always  been 
called  and  known  since  my  boyhood.  It  is  the  same  by  which  I 
went  in  the  neighborhood  of  the  land.  I  answered  to  that  name 
always." 

The  defendant  read  in  evidence  a  sheriff's  deed  from  the 
sheriff  of  Bates  county  reciting  a  judgment  against  these  lands 
in  favor  of  the  collector  for  delinquent  taxes  thereon  for  the 
years  1885  and  1886,  which  judgment  was  rendered  against 
Vaughn  Turner  and  declared  to  be  a  lien  on  said  lands,  and 
decreed  their  sale  to  satisfy  such  judgment,  interest  and  costs. 
It  further  recited  a  sale  theteof  June  17,  1889,  and  that  Oscar 
Reeder  was  the  highest  and  best  bidder  and  purchaser  thereof, 
and  the  conveyance  to  said  Reeder.  Defendant  then  read  a  deed 
from  Reeder  to  himself  of  date  June  27,  1889.  Defendant  also 
produced  other  witnesses  who  knew  plaintiff  during  his  residence 
in  Missouri  and  testified  he  was  known  as  Vaughn  Turner. 

It  is  at  once  apparent  that  one  of  the  prime  questions  in  this 
case  is  whether  a  suit  against  Vaughn  Turner  and  an  order  of 
publication  against  Vaughn  Turner  and  a  judgment  against 
Vaughn  Turner  is  sufficient  to  divest  the  title  of  Singleton 
Vaughn  Turner,  whose  title  to  the  land  depends  upon  a  warranty 
deed  to  Singleton  V.  Turner,  duly  recorded  prior  to  the  assess- 
ment and  levy  of  the  taxes,  which  are  the  basis  of  the  judgment, 
and  prior  to  the  commencement  of  the  suit  against  Vaughn  Tur- 
ner. The  validity  of  the  tax  deed  depends  upon  the  order  of 
publication. 

It  is  a  fundamental  rule  of  our  law,  founded  in  the  plainest 
principles  of  natural  justice  that  no  man  shall  be  deprived  of 
his  life,  liberty  or  property  without  due  process  of  law.  Notice 
of  the  proceedings  against  him  is  essential  to  their  validity.  Ac- 
cordingly whenever  it  is  feasible  our  laws  provide  for  actual, 
personal  service  on  the  defendant  of  the  notice  of  the  action,  and 
in  all  proceedings  the  Christian  and  surname  of  both  the  plain- 
tiff and  the  defendant  should  be  set  forth  in  the  pleadings  and 
process  with  accuracy.  (Martin  v.  Barron,  37  Mo.  loc.  cit.  304 
and  305.) 

When  a  party  is  sued  by  a  wrong  name  and  actually  served 
with  process,  if  he  does  not  appear  and  plead  the  misnomer  in 
abatement  the  judgment  will  not  be  void.  (Corrigan  v.  Schmidt, 
126  Mo.  loc.  cit.  311.) 

But  a  distinction  exists  between  a  case  of  personal  service  and  a 


Sec.  1.]  TURNER   V.    GREGORY.  33 

case  where  the  defendant  is  a  non-resident,  where  the  only  notice 
is  by  publication.  This  at  best  is  but  constructive  service  of  no- 
tice, and  where  resort  is  had  to  this  method,  a  substantial,  even 
rigid  observance  of  the  law  is  required,  otherwise  the  judgment 
will  be  void.  (Hutchinson  v.  Shelley,  133  Mo.  400;  Winning- 
ham  V.  Trueblood,  149  Mo.  572;  Young  v.  Downey,  145  Mo. 
250.) 

Hence  in  notifying  a  person  by  publication,  as  he  can  only  be 
designated  by  his  name,  if  his  name  be  omitted,  or  a  wrong  name 
is  attributed  to  him,  it  is  at  once  evident  that  he  receives  no 
notice  in  fact  ^  and  has  no  opportunity  of  filing  a  plea  in  abate- 
ment. These  general  principles  are  settled  law,  but  considerable 
difficulty  has  been  experienced  at  times  in  their  application. 
What  shall  be  considered  the  name  of  a  defendant  is  not  always 
so  plain. 

One  general  rule  has  been  to  hold  the  first  Christian  name  as 
essential  and  to  hold  that  the  middle  name  is  no  part  of  the 
man's  name,  or  at  least  not  necessary  to  his  designation.  Ac- 
cordingly in  Corrigan  v.  Schmidt,  126  Mo.  304,  the  order  of 
publication  was  directed  to  Owen  Corrigan,  whereas  the  defend- 
ant's name  was  John  Owen  Corrigan,  and  it  was  held  the  process 
was  void.  On  the  other  hand  in  Beckner  v.  McLinn,  107  Mo. 
277,  the  defendant  was  named  Mary  Ann  Byers,  and  in  the  order 
of  publication  she  was  described  as  Mary  E.  Byers.    It  was  held 

1  Ellison,  J.,  in  Green,  v.  Meyers,  a  requisite  to  jurisdiction.  A  per- 
98  Mo.  App.  438,  "In  so  concluding  son  may  know  that  an  action  is 
we  are  not  unaware  of  those  cases  pending  against  him,  and  he  may 
wherein  the  Supreme  Court  of  this  know  that  notice  by  an  order  of 
State  and  the  United  States  and  publication  was  intended  for  him, 
this  court  have  decided  that  in  the  yet  such  knowledge  will  not  supply 
absence  of  matter  of  estoppel,  an  the  place  of  a  proper  order  published 
order  of  publication,  or  notice  of  with  substantial  correctness.  In 
sale  by  publication,  against  a  per-  other  words,  knowledge,  in  such 
son  by  the  initial  of  his  Christian  cases,  will  not  supply  notice.  But 
name  was  not  sufficient.  Skelton  v.  in  the  matter  of  record  of  judg- 
Sackett,  91  Mo.  377;  Turner  V.  Greg-  ments  and  deeds,  the  reverse  is 
ory,  151  Mo.  100;  Marx  v.  Hanthorn,  true;  knowledge  will  supply  notice. 
148  U.  S.  172;  Mosely  v.  Eiely,  126  If  there  be  knowledge  there  need 
Mo.  124;  Burge  v.  Burgei  (not  yet  not  be  notice.  So  that  if  one  has 
reported).  But  they  are  to  be  dis-  knowledge  of  a  deed  it  is  not  nec- 
tinguished  from  cases  of  the  kind  essary  that  he  have  the  notice  which 
now  being  considered.  An  order  of  the  law  attaches  to  its  being  re- 
publication is  a  mode  of  service  as  corded." 

H.  T.  P.— 3 


34  PROCESS.  [Chap.  I. 

she  was  properly  notified,  as  the  middle  name  was  no  part  of 
her  name  in  law.  (Phillips  v.  Evans,  64  Mo.  23;  Smith  v.  Ross, 
7  Mo.  463 ;  State  v.  Martin,  10  Mo.  391 ;  Franklin  v.  Talmadge, 
5  Johns.  84.)  A  similar  ruling  has  been  made  in  many  other 
states.     (14  Eney.  Plead.  &  Prac.  p.  276,  note  1.) 

Again  much  controversy  has  arisen  as  to  whether  an  order  of 
publication  which  indicated  the  defendant  merely  by  the  initials 
of  his  Christian  name  was  sufficient,  and  in  Skelton  v.  Sackett, 
91  Mo.  377,  it  was  held  that  an  order  of  publication  to  Q.  R.  No- 
land  was  not  sufficient  to  give  jurisdiction  over  Quinces  R.  No- 
land,  in  a  tax  case  where  the  record  title  was  in  Quinces  R. 
Noland. 

On  the  other  hand  in  Elting  v.  Gould,  96  Mo.  535,  the  order 
of  publication  to  R.  0.  Elting  was  held  sufficient  where  the  record 
title  was  a  patent  to  R.  0.  Elting. 

In  Nolan  v.  Taylor,  131  Mo.  224,  in  a  proceeding  to  collect 
taxes,  M.  Jeff  Thompson  appeared  from  the  record  to  be  the 
owner  of  the  land,  and  the  judgment  was  rendered  against  Jeff 
M.  Thompson,  and  it  appeared  that  the  warrants  were  located 
and  the  land  entered  in  the  name  of  M.  Jeff  Thompson.  It  was 
said :  ' '  This  is  the  name  he  himself  used  and  by  which  we  must 
assume  he  was  commonly  known.  He  adopts  and  uses  the  given 
name  of  Jeff  and  enters  the  land  in  that  name."  It  was  held 
that  the  judgment  was  valid.  These  cases  proceed  upon  a  prin- 
ciple. They  are  the  construction  of  our  statute,  section  7682, 
R.  S.  1899,  which  requires  all  actions  to  enforce  the  state 's  lien 
against  the  delinquent  owners  of  real  estate  to  be  brought 
' '  against  the  owner  of  the  property. ' ' 

In  Vance  v.  Corrigan,  78  Mo.  94,  and  in  State  ex  rel.  v.  Sack, 
79  Mo.  661,  it  was  held  to  be  a  compliance  with  this  statute  to 
make  the  owner  of  the  land  of  record  a  defendant.  This  ruling 
was  followed  in  Cowell  v.  Gray,  85  ]\Io.  169,  and  many  times 
since. 

"When,  therefore,  the  question  of  the  sufficiency  of  the  order 
in  the  Elting  case  was  presented  to  the  court,  this  court  looked 
to  the  record  and  found  that  the  record  owner  was  R.  0,  Elting. 
Hence  while  it  was  true  that  while  the  owner  of  this  land  was 
named  Richard  0.  Elting,  he  was  entitled  to  have  notice  by  that 
name,  yet  if  of  his  own  accord  he  saw  fit  to  take  the  title  to  his 
land  by  the  name  of  R.  0.  Elting  and  place  it  of  record,  this  was 
an  assertion  that  as  owner  of  that  land  his  name  was  R.  0.  Elting, 


Sec.  1.]  TURNER   V.    GREGORY.  35 

and  when  sued  by  that  name  for  taxes  on  that  land,  he  was 
estopped  to  say  that  his  initials  were  not  a  sufficient  designa- 
tion of  himself.  We  have  then  as  to  this  class  of  cases  a  reason- 
able rule  for  the  determination  of  this  question  of  the  name  of 
the  owner.  Apply  this  rule  to  this  case  and  we  find  that  the 
record  owner  of  this  land  was  Singleton  V.  Turner.  In  his  deed 
of  record  he  is  designated  Singleton  V.  Turner  no  less  than  four 
times,  and  strange  to  say  he  signs  his  own  name  in  full  after  that 
of  his  grantors,  making  in  all  five  times  his  name  appears  on  the 
record  to  which  the  collector  was  required  to  go  to  find  the  owner 
of  this  land  before  bringing  suit.  It  is  argued,  however,  that  he 
was  known  by  his  middle  name  of  Vaughn.  There  is  no  evidence 
that  he  ever  signed  his  name  that  way,  nor  is  he  responsible  for 
the  fact  that  others  so  designated  him.  He  has  done  nothing  to 
estop  himself  from  disputing  the  validity  of  these  proceedings 
against  him.  Not  having  been  sued 'by  his  real  name,  and  that 
name  appearing  of  record  as  owner  of  the  land  in  suit  in  the 
county  in  which  he  was  sued,  the  order  of  publication  and  judg- 
ment must  be  held  void  and  subject  to  attack  collaterally  as  well 
as  directly.  This  conclusion  is  in  harmony  with  all  of  our  de- 
cisions. 

In  Mosely  v.  Reily,  126  Mo.  124,  it  will  be  observed  the  land- 
owner had  been  sued  by  his  correct  initials  and  judgment  ob- 
tained and  the  land  sold.  Subsequently  by  the  same  initials  he 
conveyed  the  land  to  a  third  person  who  sued  the  purchaser  at 
the  tax  sale.  When  Mosely,  the  purchaser  from  Clements, 
brought  ejectment  and  came  into  court  and  claimed  title  under 
C.  T.  Clements,  we  think  he  was  clearly  estopped  from  denying 
the  validity  of  a  judgment  against  his  grantor  by  the  same  name 
which  the  grantor  used  in  conveying  him  the  land.  That  ease 
was  decided  correctly  upon  the  principle  of  estoppel.  (City 
Council  v.  King,  4  McCord,  487.) 

II.  As  to  the  other  contention  that  the  sheriff's  deed  to  Oscar 
Reeder  was  void  because  Reeder  was  the  collector  who  brought 
the  suit,  we  have  ruled  otherwise  in  Walcott  v.  Hand,  122  Mo. 
621,  to  which  we  still  adhere. 

The  judgment  is  reversed  and  cause  remanded.^  Sherwood 
and  Burgess,  J.  J.,  concur. 

2  See  also  rienuning  v.  Kjapl,  61  versed  in  the  notice :  Dautremont  v. 
la.  417,  holding  judgment  void  Iron  Co.,  104  Minn.  165,  where  the 
where  defendant's  initials  were  re-       notice  used  the  wrong  middle  initial. 


36  PROCESS.  [Chap.  I. 

FLADLAND  v.  DELAPLAINE. 

19  Wisconsin,  459.     [1865.] 

By  the  Court,  Downer,  J.  Davenport  Rood  convej^ed  the 
premises  in  dispute  to  John  Liedburg,  who  executed  a  mortgage 
to  Rood  to  secure  the  purchase  money.  Suit  was  brought  to  fore- 
close the  mortgage  in  the  circuit  court  for  the  county  of  Dane  by 
Jesse  Rhodes,  the  assignee  of  Rood,  and  he  and  Liedburg  were 
the  only  defendants  to  the  action.  There  was  no  personal  service 
on  Liedburg,  nor  did  he  appear  in  the  action,  and  if  there  was 
any  service  on  him  at  all,  it  was  by  the  publication  of  an  order 
for  him  to  appear  and  plead.  The  record  in  this  court  shows 
neither  the  date  of  the  order  nor  the  time  it  was  filed  in  the 
circuit  court.  The  defendants  in  error,  plaintiffs  below,  trace 
their  title  to  the  premises  through  the  foreclosure  decree  and 
sale  under  it.  It  is  insisted  that  the  proceedings  in  that  action 
are  void,  and  we  think  they  are  as  to  the  defendant  Liedburg. 
The  Revised  Statutes  of  1839,  which  the  counsel  for  the  defend- 
ants in  error  claim  were  in  force  at  the  time  the  order  of  pub- 
lication was  made,  provide  (sec.  45,  p.  287)  that  ''the  court  may 
by  order  direct  such  absent  defendant  to  appear,  plead,  answer 
or  demur  to  the  complaint's  bill  of  complaint  at  a  certain  day 
therein  to  be  named,  not  less  than  three  nor  more  than  six  months 
from  the  date  of  such  order. ' '  The  tenth  subdivision  of  section 
one  of  "An  act  concerning  the  construction  of  statutes"  (R.  S. 
1839,  p.  35),  provides  that  the  word  "month"  shall  be  construed 
to  mean  a  calendar  month,  unless  otherwise  expressed.  Accord- 
ing to  these  provisions  the  order  should  have  required  Liedburg 
to  appear  and  answer  the  bill  on  a  day  certain,  not  less  than 
three  months  from  the  date  of  the  order.  The  order  made  fixes 
no  day  on  which  he  should  appear  and  answer,  but  requires  him 
to  do  it  in  less  than  three  months.  In  proceedings  against  absent 
or  non-resident  defendants,  where  there  is  no  personal  service, 
the  courts  have  uniformly  held  that  the  directions  of  the  statute 
must  be  strictly  followed.  In  this  case  there  is  no  pretense  that 
the  circuit  court  obtained  jurisdiction  as  to  Liedburg  and  his 
property  in  any  other  way  than  by  virtue  of  the  order  and  its 
publication.  This  order  was  not  such  as  the  statute  authorized. 
If  it  would  be  valid  when  it  required  the  defendant  to  answer 
within  ninety  days,  instead  of  on  a  certain  day  beyond  the  period 


Sec.  2.]  servicb,  37 

of  three  calendar  months,  it  would  be  valid  if  it  required  him  to 
answer  in  thirty  days  or  any  shorter  time.  It  is  clear  to  us  that 
the  proceedings  in  the  foreclosure  suit  are  entirely  void  as  to 
Liedburg.i 


Section  2.    Service. 
(a)   Common  Law  and  Statutory  Methods. 

Illinois  Statutes,  1913. 

[11.  Service  of  summons — Continuance.]  §  11.  Service  of 
summons  shall  be  made  by  delivering  a  copy  thereof  to  the 
defendant,  or  leaving  such  copy  at  his  usual  place  of  abode,  with 
some  person  of  the  family,  of  the  age  of  ten  years  or  upwards, 
and  informing  such  person  of  the  contents  thereof.  If  service 
is  not  had  at  least  ten  days  before  the  return  day  of  such  sum- 
mons, the  cause  shall  stand  continued  till  the  next  term  of  the 
court.i 

[2,  Service — Return — Fees — By  copy.]  §  2.  It  shall  be  the 
duty  of  the  sheriff  or  coroner  to  serve  all  process  of  summons 
or  capias,  when  it  shall  be  practicable,  ten  days  before  the 
return  day  thereof,  and  to  make  return  of  such  process  to  the 
clerk  who  issued  the  same,  by  or  on  the  return  day,  with  an 
endorsement  of  his  service,  the  time  of  serving  it,  and  the  amount 
of  his  fees:  Provided,  that  when  such  process  shall  have  been 
directed  to  a  foreign  county,  the  officer  executing  the  same  may 
make  return  thereof  by  mail ;  and  the  clerk  may  charge  the  post- 
age and  tax  the  amount  in  his  fee  bill.  Service  of  summons, 
except  when  otherwise  expressly  provided  by  statute,  shall  be 
made  by  leaving  a  copy  thereof  with  the  defendant  in  person.^ 

1  Accord:   Brownfield  v.  Dyer,  70  i  Chap.     22,     Chancery     Practice 

Ky.  505.     See,  also,  McDermaid  v.  Act. 

Russel,  41  111.  489,  reversing  default  2  Chap.  110,  General  Practice  Act. 

where    notice    required    appearance  Before    the    amendment    of    this 

after   the   proper   time;    Calkins   v.  statute  the  court  had  held  that  the 

Miller,  55  Neb.  601,  quashing  order  service  should  be  by  reading  instead 

for  same  reasons ;  Jennings  v.  John-  of  delivery  of  copy,  Lav?  v.  Grommes, 

son,  148  Fed.  337,  where  the  order  158  111.  492. 
failed  to  designate  the  day  for  ap- 
pearance. 


38  PROCESS.  [Chap.  I. 

[8.  Service  on  corporation — Return,]  §  8.  An  incorporated 
company  may  be  served  with  process  by  leaving  a  copy  thereof 
with  its  president,  if  he  can  be  found  in  the  county,  in  which  the 
suit  is  brought.  If  he  shall  not  be  found  in  the  county,  then  by 
leaving  a  copy  of  the  process  with  any  clerk,  secretary,  superin- 
tendent, general  agent,  cashier,  principal,  director,  engineer,  con- 
ductor, station  agent,  or  any  agent  of  said  company  found  in  the 
county;  and,  in  case  the  proper  officer  shall  make  return  upon 
such  process  that  he  cannot  in  his  county  find  any  clerk,  secre- 
tary, superintendent,  general  agent,  cashier,  principal,  director, 
engineer,  conductor,  .station  agent,  or  any  other  agent  of  said 
company,  then  such  company  may  be  notified  by  publication  and 
mail  in  like  manner  and  with  like  effect  as  is  provided  in  sections 
twelve  (12)  and  thirteen  (13)  of  an  act  entitled  "An  act  to 
regulate  the  practice  in  courts  of  chancery." 

Missouri  R.  S.  1909. 

[1760.  Writ,  How  served  on  persons  and  foreign  corpora- 
tions.] §  1760.  A  summons  shall  be  executed,  except  as  other- 
wise provided  by  law,  either:  First,  by  reading  the  writ  to 
the  defendant  and  delivering  to  him  a  copy  of  the  petition; 
or,  second,  by  delivering  to  him  a  copy  of  the  petition  and 
writ;  or,  third,  by  leaving  a  copy  of  the  petition  and  writ 
at  his  usual  place  of  abode,  with  some  person  of  his  family 
over  the  age  of  fifteen  years;  or,  fourth,  where  defendant 
is  a  corporation  or  joint  stock  company,  organized  under  the 
laws  of  any  other  state  or  country,  and  having  an  office  or  doing 
business  in  this  state,  by  delivering  a  copy  of  the  writ  and  peti- 
tion to  any  officer  or  agent  of  such  corporation  or  company  in 
charge  of  any  office  or  place  of  business,  or  if  it  have  no  office 
or  place  of  business,  then  to  any  officer,  agent  or  emploj^ee  in  any 
county  where  such  service  may  be  obtained,  and  when  had  in 
conformity  with  this  subdivision,  shall  be  deemed  personal  serv- 
ice against  such  corporation,  and  authorize  the  rendition  of  a 
general  judgment  against  it ;  or,  fifth,  where  there  are  several 
defendants,  by  delivering  to  the  defendant  who  shall  be  first 
summoned  a  copy  of  the  petition  and  writ,  and  to  such  as  shall 
be  subsequently  summoned,  a  copy  of  the  writ,  or  by  leaving 
such  copy  at  the  usual  place  of  abode  of  the  defendant,  with 
some  person  of  his  family  over  the  age  of  fifteen  years;  sixth, 


Sec.  2.]  smith  v.  wintle.  89 

where  any  action  shall  be  commenced  against  any  county,  a  copy 
of  the  original  summons  shall  be  left  with  the  clerk  of  the  county 
court  fifteen  days  at  least  before  the  return  day  thereof.  All 
copies  of  said  writ  shall  be  made  by  the  officer  serving  same,  and 
for  each  copy  necessarily  made  by  him  he  shall  be  entitled  to  a 
fee  of  ten  eents.^ 


SMITH  V.  WINTLE. 

Barnes  Notes,  405.     [1734.] 

Defendant  moved  to  set  aside  the  proceedings,  upon  an  affi- 
davit that  he  was  never  served  with  process.  A  rule  was  made 
to  show  cause.  Upon  showing  cause,  plaintiff,  who  served  the 
writ,  made  an  affidavit  that  he  put  a  copy  through  a  crevice  of 
the  door  of  the  Permit  Office  in  Moorfield's,  defendant  having 
locked  himself  in,  that  he  plainly  saw  him  through  the  crevice, 
that  he  was  very  near  the  door,  and  that  he  acquainted  him  what 
the  paper  (put  through  the  crevice)  was,  which  the  court  held 
to  be  sufficient  service  and  discharged  the  rule.  Darnal  for 
plaintiff';  Birch  for  defendant. 


GOGGS  v.  LORD  HUNTINGTOWER. 

1  Dowling  &  Lowndes,  599.     [1844.] 

Saunders  moved  for  leave  to  enter  an  appearance  for  defend- 
ant. The  affidavit  in  support  of  the  application  stated  that  in 
order  to  serve  the  defendant  with  a  copy  of  the  writ  of  summons, 
a  person  went  three  times  to  his  residence,  where  he  saw  a 
female  servant,  who  said,  her  master  was  not  at  home.  On  the 
third  occasion  she  let  down  over  the  garden  wall  a  basket  into 
which  the  writ  was  put.  The  servant  then  took  back  tlie  basket 
and  shortly  afterwards  the  voice  of  the  defendant  was  heard  in 

1  As   amended  by  Laws  of   1911, 
pp.  138-9. 


40  PROCESS.  [Chap.  I. 

the  yard,  saying  to  the  servant,  "Take  it  back,  I  will  not  have 
it."  The  party  called  on  a  subsequent  day  vi^hen  the  servant 
said  she  had  given  the  writ  to  her  master.  There  were  several 
authorities  to  show  that  personal  service  was  not  necessary  where 
it  clearly  appeared  that  the  process  had  come  to  the  hands  of  the 
defendant. 

Parke,  B.  In  consequence  of  those  cases,  the  judges  have 
come  to  a  determination  that  in  future  there  shall  be  no  equiva- 
lent for  personal  service. 

Alderson,  B.  Service  means  serving  the  defendant  with  a 
copy  of  process  and  showing  him  the  original,  if  he  desires  it. 

Lord  Abinger,  C.  B.    You  may  take  a  rule  for  distringas. 

Rule  refused. 


SLAGHT  V.  BOBBINS. 

13  New  Jersey  Laiv  Rep.  340.     [1833.] 

HoRNBLOW^ER,  C.  J.  The  plaintiff  in  certiorari  seeks  to  reverse 
this  judgment  on  two  grounds.  First,  that  the  summons  was  not 
legally  served;  and,  secondly,  that  the  justice  adjourned  the 
cause  in  the  absence  of  defendant,  and  then  proceeded  on  the 
day  to  which  he  had  adjourned  the  cause  to  give  judgment  against 
the  defendant  without  giving  him  any  notice  of  the  adjournment. 
The  validity  of  the  second  reason  depends  on  the  sufficiency  of 
the  first.  If  the  defendant  was  legally  summoned  it  was  his  own 
fault  that  he  had  not  notice.  He  ought  to  have  attended  and  he 
would  then  have  known  the  time  to  which  the  cause  was  ad- 
journed. The  question  then  arises,  was  the  summons  legally 
served?  The  constable  returned  that  he  had  "served  the  sum- 
mons on  the  defendant  by  offering  to  read  the  same  to  him,  but 
he  would  not  stay  to  hear  it."  The  act  of  assembly  points  out 
two  modes  of  service :  First,  by  reading  it  to  the  defendant  if 
found  and  giving  him  a  copy  if  required;  and  secondly,  by 
leaving  a  copy  at  his  residence,  etc.  The  object  of  the  summons 
is  to  give  notice  to  the  defendant,  and  when  the  constable  finds 
or  meets  with  him,  and  thus  has  an  opportunity  of  making  a 
personal  service,  it  is  his  duty  to  do  so,  and  it  is  better  service 
so  far  as  the  defendant  is  concerned  than  service  by  leaving  a 


Sec.  2.]  heath  v.  white.  41 

copy  at  his  place  of  residence.  In  this  case  the  defendant  refused 
to  remain  and  hear  the  summons  read  to  him,  he  would  not  stay 
to  hear  it;  and  without  furnishing  the  court  with  any  reason  or 
excuse  for  his  doing  so,  he  now  seeks  a  reversal  of  the  judgment 
because  the  summons  was  not  read  to  him;  thus  attempting  to 
take  advantage  of  his  own  improper  conduct.  We  are  of  opinion 
the  service,  was  sufficient, ^  and  his  not  knowing  of  the  adjourn- 
ment was  his  own  folly.     Let  the  judgment  be  affirmed. 

It  appears  in  this  ca.se  the  original  certiorari  was  lost  and  a 
rule  of  this  court  was  granted  in  May  term,  1831,  that  a  new 
certiorari  should  issue  by  way  of  substitute.  By  mistake  an 
alias  certiorari  was  issued,  this  was  wrong ;  there  is  no  such  writ 
as  an  alias  certiorari.  Let  the  certiorari  be  amended  and  made 
comformable  to  the  rule  of  court. 


HEATH  V.  WHITE. 

2  Bowling  &  Lowndes,  40.     [18^4.] 

Peacock  showed  cause  against  a  rule  obtained  by  Ball,  calling 
upon  the  plaintiff  to  show  cause  why  the  appearance  entered  for 
the  defendant  in  this  cause,  the  declaration  and  notice  thereof 
served  on  the  defendant,  and  all  subsequent  proceedings  thereon 
should  not  be  set  aside,  on  the  ground  of  irregularity.  The  cir- 
cumstances of  the  case  were  these :  The  plaintiff  had  entered  an 
appearance  for  the  defendant  and  served  him  with  notice  of 
declaration,  on  affidavit  of  personal  service  of  the  writ  of  sum- 
mons, by  one  Charles  Thornton.  The  defendant  had  obtained 
the  present  rule  on  an  affidavit  made  by  himself,  stating  that  no 
writ  of  summons  purporting  to  be  issued  out  of  this  court  in  this 
cause,  nor  any  copy  thereof,  had  been  served  upon  him,  uor 
had  any  copy  of  the  said  writ  ever  come  to  his  possession  or 
knowledge ;  and  that  the  first  intimation  or  notice  whieh  he  had 
of  any  proceedings  having  been  taken  against  him  was  the  receipt 
of  the  notice  of  declaration.     In  answer  to  this  was  produced  an 

1  And  so  in  Borden  v.  Borden, 
63  Wis.  374,  where  on  refusal  to  re- 
ceive a  copy  it  was  left  in  the  door. 


42  PROCESS.  [Chap.  I. 

affidavit  of  C.  Thornton,  the  party  serving  the  writ  of  summons, 
to  the  following  effect:  That  on  going  to  defendant's  place  of 
residence  he  saw  the  defendant's  man-servant,  who,  on  inquiry, 
stated  that  his  master  was  at  home;  that  upon  knocking  at  the 
front  door  of  the  defendant's  house  he  was  told  by  a  female, 
who  answered  it,  that  the  defendant  was  not  at  home ;  that 
afterwards  the  defendant's  wife  came  to  the  door  and  said  he 
had  been  gone  out  some  time,  but  would  be  back  in  ten  minutes ; 
that  deponent  waited  upon  the  premises  for  ten  minutes  and  then 
again  knocked  at  the  front  door  of  the  house;  that  the  defend- 
ant's wife  then  repeated  that  the  defendant  had  gone  out;  that 
deponent,  having  turned  round  towards  the  window  of  the  house, 
saw  the  defendant  looking  through  it  at  him ;  that  he  thereupon 
immediately  called  out  to  him  as  loud  as  he  could,  stating  that 
he  had  got  a  writ  against  him  at  the  suit  of  the  plaintiff,  and 
held  the  copy  for  him  to  see,  and  threw  it  down  and  left  it  for 
him  in  his,  the  defendant's  garden,  before  the  said  window, 
whilst  the  defendant  was  present  thereat,  the  defendant's  wife 
being  at  the  time  close  to  deponent's  elbow,  and  deponent  told 
her  she  had  better  pick  it  up  and  take  it  into  the  house,  and 
give  it  to  her  husband  as  deponent  had  seen  him,  to  which  she 
replied,  "I  shall  not  touch  it;"  that  deponent  thereupon  came 
away  from  the  defendant's  premises,  leaving  the  copy  of  the  writ 
where  he  had  thrown  it  down;  and  that  deponent  had  been 
previously  informed  in  the  neighborhood  of  the  defendant's 
residence,  that  the  defendant  was  a  man  that  kept  out  of  the 
way,  and  was  rather  difficult  to  be  met  with.  It  is  submitted 
that  a  service  effected  under  the  circumstances  detailed  will  be 
considered  a  sufficient  personal  service.  In  Thompson  v.  Pheney 
(1  Dowl,  443),  Mr.  Justice  Patteson  says,  "I  do  not  mean  to 
say  that  it  is  necessary  to  leave  the  process  in  the  actual  corporal 
possession  of  the  defendant ;  for,  whether  the  party  touches  him 
or  puts  it  into  his  hand,  is  immaterial  for  the  purpose  of  personal 
service.  Personal  service  may  be,  where  you  see  a  person  and 
bring  the  process  to  his  notice.  If  the  deponent  had  informed 
the  defendant  of  the  nature  of  the  process,  and  thrown  it  down, 
that  would  do."  In  the  present  case  the  deponent  sees  the 
defendant  at  the  window,  explains  to  him  the  purpose  of  his 
visit,  and  throws  a  copy  down  in  his  sight.  (Wightman,  J. 
The  window  may  have  been  closed  and  the  defendant  so  far  off 
that  the  defendant  may  never  have  heard  a  word  he  said.)     If 


Sec.  2.  ]  maher  v.  kelley.  43 

this  is  not  a  personal  service  the  defendant  may  always  avoid 
being  personally  served.  In  1  Chit.  Arch.,  p.  115,  7th  ed.,  it  is 
laid  down  that  "if  after  informing  the  defendant  of  the  nature 
of  the  process,  and  tendering  the  copy,  he  refuses  to  receive  it, 
then  placing  it  on  his  person,  or  throwing  it  down  in  his  presence, 
or  leaving  it  at  his  house,  would  be  sufficient  service.  Where  a 
writ  was  put  through  the  crevice  of  a  door  to  the  defendant,  who 
had  locked  himself  in,  the  service  was  deemed  sufficient ;  and  the 
same,  where  it  was  inclosed  in  a  letter,  which  was  proved  to  have 
been  received  by  the  defendant,  and  that  he  took  out  the  copy. ' ' 
And  he  cites  several  authorities.  (Wightman,  J.  I  think  it  is 
safer  to  adhere  to  the  general  rule,  that  there  should  be  actual 
personal  service.  If  you  cannot  effect  that  you  can  then  have  a 
distringas.) 

Saunders,  amicus  ciiriae,  cited  Goggs  v.  Lord  Huntingtower, 
in  which  the  Court  of  Exchequer  held  that  for  the  future  they 
would  allow  no  equivalent  for  personal  service. 

Ball,  in  support  of  the  rule,  was  not  called  upon. 

Wightman,  J.  Every  case  must  depend  in  a  great  measure  on 
its  own  circumstances.  I  can  conceive  if  the  party  is  standing 
in  the  same  room  close  to  the  defendant  it  may  not  be  necessary 
that  he  should  actually  force  a  copy  of  the  writ  into  the  de- 
fendant 's  hands ;  laying  it  down  before  him  would  be  sufficient. 
And,  on  the  other  hand,  it  would  be  absurd  to  hold  it  a  personal 
service  if  defendant,  being  at  a  window  at  the  top  of  his  house, 
the  party  were  to  lay  down  the  writ  in  the  road  at  some  distance 
off.  I  think  that  in  the  present  case  there  has  been  no  such 
personal  service  as  is  required,  and  the  rule  must,  consequently, 
be  absolute. 

Rule  absolute} 


MAHER  V.  KELLEY. 

26  Illinois,  348.      [1861.] 

Appeal  from  an  order  refusing  to  set  aside  a  judgment  by 
default.^ 

1  See,    also,    Van    Eanssellaer    v.  i  The    statement    has    been    eon- 

Petrie,  3  How.  Prac.  94,  where  de-       densed. 
fendant  left  before  the   officer   of- 
fered a  copy. 


44  PROCESS.  [Chap.  I. 

Caton,  C.  J.  The  service  in  this  case  was  this:  "Served  the 
within  writ  on  the  within  named  Hugh  Maher  by  informing  him 
of  the  contents  of  the  within  writ,  and  he  accepting  service  the 
12th  of  October,  1860."  This  service  was  not  sufficient.  The 
statute  requires  the  service  to  be  by  reading  or  by  copy.  If  he 
had  acknowledged  service  in  writing  upon  the  process,  it  might 
have  estopped  him  to  deny  a  sufficient  service.  But  in  this  case 
there  was  neither  the  service  required  by  the  statute  nor  its  full 
equivalent.  The  officer  says  he  informed  the  defendant  of  the 
contents  of  the  writ ;  but  in  this  he  may  have  misunderstood  the 
substance  of  the  writ.  The  defendant  was  not  bound  to  take 
the  understanding  of  the  officer  of  the  purport  of  the  writ.  If 
the  particular  mode  of  service  remiired  by  the  statute  can  in  any 
ease  be  dispensed  with,  it  can  only  be  where  the  court  can  see 
that  the  information  conveyed  to  the  defendant  was  quite  as  full 
and  beneficial  as  if  the  service  had  been  in  strict  conformity  to 
the  statute.     The  judgment  below  is  reversed. 


PALMER  V.  BELCHER. 
21  Nebraska,  58.     [18,87.] 

Reese,  J.  The  original  action  was  instituted  before  a  justice 
of  the  peace  in  Valley  county.  Plaintiff  in  error  appeared  spe- 
cially and  objected  to  the  jurisdiction  of  the  court,  alleging  as 
the  ground  of  such  objection  the  defect  in  service  of  the  summons. 
The  objection  was  overruled  by  the  justice,  to  which  plaintiff  in 
error  excepted  and  removed  the  cause  into  the  District  Court  by 
proceedings  in  error.  In  that  court  the  judgment  of  the  justice 
of  the  peace  was  affirmed.  Plaintiff'  now  alleges  error  and  assigns 
therefor  the  ruling  of  the  District  Court  in  affirming  the  decision 
of  the  justice  of  the  peace. 

The  return  of  the  sheriff,  to  which  objection  is  made,  is  as 
follows:  "August  23,  1884.  Received  this  writ,  and  on  the  23d 
day  of  August,  1884,  I  served  the  same  on  the  within  named 
defendant,  H.  J.  Palmer,  by  leaving  a  copy  of  the  within  sum- 
mons with  George  Palmer,  and  by  him  the  said  George  Palmer, 
in  my  presence  at  the  time  of  said  service  delivered,  the  same 
being  a  true  copy  of  the  within  summons  with  aU  endorsements 


Sec.  2.]  palmer  v.  belcher.  45 

thereon  certified  by  me  to  be  a  true  copy  to  said  H.  J.  Palmer, ' ' 
properly  signed  by  the  officer. 

The  objection  to  this  service  is  that  the  sheriff  delivered  a  copy 
of  the  summons  to  George  Palmer  instead  of  to  plaintiff  in  error, 
and  that  George  Palmer,  who  delivered  it  to  plaintiff  in  error,  not 
being  an  officer  with  authority  to  serve  a  summons,  had  no  power 
to  make  the  service  by  delivering  it  to  plaintiff.  In  other  words, 
the  sheriff  served  the  summons  on  the  wrong  person,  and  the  fact 
that  he  gave  it  to  the  one  intended  to  be  served  would  not  con- 
stitute a  valid  service. 

We  concede  all  that  is  claimed  by  plaintiff  as  to  the  duty  of 
courts  to  see  that  proper  service  of  summons  is  made  before 
asserting  jurisdiction  and  rendering  judgment  thereon ;  and  that 
there  must  be  a  compliance  with  the  requirements  of  the  statute 
before  jurisdiction  can  be  obtained.  If  then  the  service  does  not 
come  up  to  these  requirements  the  decision  of  the  District  Court 
was  wrong. 

Section  911  of  the  civil  code,  prescribing  the  manner  of  service 
of  summons,  in  so  far  as  it  applies  to  the  case  at  bar,  is  as  follows : 

"The  summons  must  «=  *  *  be  served  at  least  three  days 
before  the  time  of  appearance,  by  delivering  a  copy  of  the 
summons  with  the  endorsement  thereon  (certified  by  the  con- 
stable or  person  serving  the  same  to  be  a  true  copy)  to  the 
defendant,  or  leaving  the  same  at  his  usual  place  of  residence. ' ' 

By  an  examination  of  the  return  of  the  sheriff,  it  appears  that 
he  served  the  summons  on  plaintiff  in  error  by  leaving  a  copy, 
properly  certified,  with  George  Palmer,  and  that  George  Palmer 
at  that  time,  in  the  presence  of  the  sheriff,  delivered  it  to  plaintiff 
in  error.  That  is,  by  some  mistake,  perhaps,  the  sheriff  gave  the 
copy  to  George.  George  at  once  handed  it  to  plaintiff  in  error. 
At  any  rate,  the  return  clearly  shows  that  the  copy  was  delivered 
to  plaintiff  in  error  in  the  presence  and  by  the  act  of  the  sheriff, 
although  passing  through  the  hand  of  another.  It  was  clearly 
the  act  of  the  sheriff,  and  it  would  have  been  perfectly  competent 
for  him  to  have  returned  that  he  delivered  the  copy  to  plaintiff 
in  error  instead  of  stating  the  manner  of  delivery  as  he  did.  Had 
the  sheriff  requested  George  Palmer  to  return  to  him  the  sum- 
mons, and  he  then  have  handed  it  to  plaintiff,  the  service  would 
have  been  perfect.  Why  any  more  so  than  for  George  to  hand 
it  at  once  to  plaintiff?  Suppose  plaintiff  had  been  so  situated  as 
to  be  just  out  of  the  direct  reach  of  the  sheriff,  and  another 


46  PROCESS.  [Chap.  I. 

person,  standing  between  and  in  each  of  both,  had  taken  the 
copy  from  the  hand  of  the  sheriff  and  handed  it  to  plaintiff,  as 
was  possibly  done  in  this  case,  why  would  the  service  not  have 
been  good  ?  We  can  see  no  reason  for  holding  it  otherwise,  even 
though  the  return  had  been  made  in  the  language  of  the  one  in 
the  case  at  bar. 

The  decision  of  the  District  Court  in  holding  the  service  to  be 
a  compliance  with  the  statute  is  affirmed. 

Judgment  affirmed.^ 

The  other  judges  concur. 


SAVINGS  BANK  OF  ST.  PAUL  v.  AUTHIER. 

52  Minnesota,  98.     [1892.] 

Dickinson,  J.  This  is  an  appeal  from  an  order  setting  aside 
a  judgment  entered  upon  default  against  the  above  named 
respondent  and  another  in  the  District  Court. 

The  court  was  right  in  setting  aside  the  judgment,  for  no 
jurisdiction  over  the  defendant  had  been  acquired  by  a  service 
of  the  summons  upon  him.  It  was  shown  so  as  to  leave  no 
room  for  doubt  that  the  service,  upon  proof  of  which  the  judg- 
ment was  entered,  was  really  made  upon  another  person — one 
John  E.  Dailey.  The  latter,  discovering  the  mistake,  mailed  to 
the  defendant  the  copy  of  the  summons  served  upon  him,  with  a 
letter  explaining  the  matter.  The  copy  so  sent  by  mail  was 
received  by  the  defendant  before  the  entry  of  the  judgment. 
Within  a  few  days  after  the  entry  of  the  judgment  the  applica- 
tion was  made  to  set  it  aside. 

The  facts  as  to  the  service  being  as  above  stated,  it  is  perfectly 
useless  to  try  to  sustain  the  judgment,  or  to  oppose  the  order 
setting  it  aside.  The  transmission  of  the  summons  by  mail  was 
wholly  unauthorized  by  law  as  a  mode  of  service,^   and  of  no 

1  In   Krotter  v.   Norton,   84  Neb.  By.  v.  Sayer,  13  Neb.  280 ;   Schwa- 

137,  a  wife  was  held  properly  served  forth  v.  Eeilly,  2  Dil.  127. 
by  delivery  of  copy  to  her  husband  i  And     so     where     a    notice    was 

for  her  in  her  presence.     In  the  ab-  mailed  to  a  non-resident  instead  of 

senee  of  statutory  authority  the  writ  being  published  as  required  by  the 

must  be  served  by  the  proper  of-  statute,  Wilson  v.  Trenton,  53  N.  J. 

ficer,  and  service  by  an  unauthorized  L.   645. 
person  will  not  confer  jurisdiction, 


Sec.  2.]  amy  v.  watertown,  47 

more  effect,  although  the  defendant  received  it,  than  would  have 
been  his  finding  it  in  the  street  if  it  had  been  lost.  The  statute 
not  only  prescribes  that  service  shall  be  made  by  delivering  a 
copy  thereof  to  the  defendant  personally  (special  provision  being, 
however,  made  for  a  different  mode  of  service  at  the  house  of  his 
usual  abode),  but  it  in  terms  declares  that  the  provision  with 
reference  to  the  service  by  mail  of  notices  and  other  papers  in 
action  shall  not  apply  to  the  service  of  a  summons.  1878,  G.  S., 
ch.  66,  §§  59,  78. 

The  judgment  being  void  for  want  of  jurisdiction,  the  re- 
spondent was  entitled  to  have  it  set  aside,  even  though  he  made 
no  showing  of  a  meritorious  defense.  Heffner  v.  Gunz,  29  Minn. 
108  (12  N.  W.  Rep.  342). 

As  the  judgment  might  properly  have  been  set  aside  without 
condition,  the  appellant  has  no  reason  to  complain  that  conditions 
were  imposed  upon  the  respondent  not  prejudicial  to  the  appel- 
lant. He  cannot  complain  that  the  respondent  was  allowed  to 
answer,  interposing  any  defense  which  he  might  then  have. 

Order  affirmed. 


AMY  V.  WATERTOWN. 
130  V.  8.  301.     [18^8.] 

This  was  an  action  in  contract  to  recover  on  bonds  issued  by 
the  municipality  of  Watertown,  in  Wisconsin.  Judgment  for 
the  defendant.  The  plaintiff  sued  out  this  writ  of  error.  The 
case  is  stated  in  the  opinion. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  principal  question  in  this  case  is,  whether  the  defendant, 
the  city  of  Watertown,  was  served  with  process  in  the  suit  so  as 
to  give  the  court  below  jurisdiction  over  it.  In  order  to  under- 
stand the  bearing  of  the  facts  of  the  case,  it  will  be  necessary  to 
give  a  brief  abstract  of  the  laws  of  Wisconsin  which  relate  to  it, 
and  these  are  mostly  to  be  found  in  the  charter  of  the  city  of 
Watertown  and  the  acts  supplementary  thereto.  The  state  laws 
are  referred  to  because  they  govern  the  practice  of  the  Federal 
Courts  in  the  matter  under  consideration.  By  the  fifth  section 
of  the  act  of  June  1,  1872,  Rev.  Stat.  §  914,  it  is  declared  that 


48  PROCESS.  [Chap.  I. 

' '  the  practice,  pleadings  and  forms  and  modes  of  proceeding  in 
civil  causes,  other  than  equity  and  admiralty  causes,  in  the 
Circuit  and  District  Courts,  shall  conform,  as  near  as  may  be,  to 
the  practice,  pleadings  and  forms  and  modes  of  proceeding  exist- 
ing at  the  time  in  like  causes  in  the  courts  of  record  of  the  State 
within  which  such  Circuit  or  Districts  Courts  are  held."  Were 
it  not  for  this  statute  the  Circuit  Courts  themselves  could  pre- 
scribe, by  general  rule,  the  mode  of  serving  process  on  corpora- 
tions as  well  as  on  other  persons. 

By  the  temporary  Process  Act  of  September  29,  1789,  1  Stat. 
93,  if  not  otherwise  provided,  the  forms  of  writs  and  executions 
(except  their  style),  and  modes  of  process  in  the  Circuit  and 
District  Courts,  in  suits  at  common  law,  were  directed  to  be  the 
same  as  in  the  Supreme  Courts  of  the  States  respectively.  By 
the  permanent  Process  Act  of  May  8,  1792,  1  Stat.  275,  it  was 
enacted  that  the  forms  of  writs,  executions  and  other  process, 
and  the  forms  and  modes  of  proceeding,  in  suits  at  common  law, 
should  be  the  same  as  directed  by  the  act  of  1789,  subject  to  such 
alterations  and  additions  as  the  said  courts  should  deem  expedi- 
ent, or  to  such  regulations  as  the  Supreme  Court  of  the  United 
States  should  think  proper  by  rule  to  prescribe  to  any  Circuit  or 
District  Court,  So  that  the  practice  in  United  States  courts,  in 
the  old  States,  was  made  to  conform  to  the  state  practice,  as  it 
was  in  1789,  subject  to  alteration  by  rule  of  court.  In  1828  a 
law  was  passed  adopting  for  the  Federal  Courts  in  the  new 
States,  admitted  since  1789,  the  forms  of  process,  and  forms  and 
modes  of  proceeding  of  the  highest  courts  of  those  States  re- 
spectively, as  then  existing,  subject  to  alteration  by  the  courts 
themselves  or  the  Supreme  Court  of  the  United  States.  4  Stat. 
278.  By  the  act  of  August  1,  1842,  the  provisions  of  the  act  of 
1828  were  extended  to  the  States  admitted  in  the  intermediate 
time. 

This  review  of  the  statutes  shows  that  after  1792  it  was  always 
in  the  power  of  the  courts,  by  general  rules,  to  adapt  their 
practice  to  the  exigencies  and  conditions  of  the  times. 

But  the  statute  of  1872  is  peremptory,  and  whatever  belongs 
to  the  three  categories  of  practice,  pleading  and  forms  and  modes 
of  proceeding,  must  conform  to  the  state  law  and  the  practice 
of  the  state  courts,  except  where  Congress  itself  has  legislated 
upon  a  particular  subject  and  prescribed  a  rule.  Then,  of  course, 
the  act  of  Congress  is  to  be  followed  in  preference  to  the  laws 


Sec.  2.]  amy  v,  watertown.  49 

of  the  State.  With  regard  to  the  mode  of  serving  mesne  process 
upon  corporations  and  other  persons,  Congress  has  not  laid  down 
any  rule ;  and  hence  the  state  law  and  practice  must  be  followed. 
There  can  be  no  doubt,  we  think,  that  the  mode  of  service  of 
process  is  within  the  categories  named  in  the  act.  It  is  part  of 
the  practice  and  mode  of  proceeding  in  a  suit. 

As  the  attempted  service  of  the  summons  in  1873  can  have  no 
effect  upon  the  solution  of  the  present  controversy,  the  question 
then  arises  whether  the  attempted  service  in  December,  1882,. 
was  a  sufficient  and  legal  service.  The  court  below  held  that  it 
was  not.  We  have  already  quoted  the  return  of  the  marshal  on 
that  occasion.  It  appears  from  this  return  that  he  made  the 
attempted  service  by  delivering  a  copy  of  the  summons  to  Wm, 
H.  Rohr,  the  last  mayor  of  the  city,  a  copy  to  Henry  Bieber,  city 
clerk,  a  copy  to  Chas.  H.  Gardner,  city  attorney,  and  a  copy 
to  Thomas  Baxter,  the  last  presiding  officer  of  the  board  of  street 
commissioners  of  the  city  of  Watertown,  the  office  of  mayor  being 
vacant  and  there  being  no  president  of  the  common  council  nor 
presiding  officer  thereof  in  office.  Was  this  such  a  service  upon 
the  city  as  the  law  requires?  It  clearly  was  not,  unless  by  the 
law  of  Wisconsin,  the  circumstances  of  the  case  were  such  as  to 
dispense  with  a  literal  compliance  with  the  charter.  The  charter 
requires  service  on  the  mayor  of  the  city.  No  such  service  was 
made.  There  was  no  mayor  in  office  at  the  time.  The  last  mayor 
had  resigned,  and  his  resignation  had  taken  effect.  Service  on 
him  was  of  no  more  avail  than  service  on  an  entire  stranger. 

The  question  then  is  reduced  to  this,  whether,  in  case  the  mayor 
has  resigned,  and  there  is  no  presiding  officer  of  the  board  of 
street  commissioners  (a  body  which  seems  to  take  the  place  of 
the  common  council  of  the  city  for  many  purposes),  service  of 
process  on  the  city  clerk,  and  on  a  conspicuous  member  of  the 
board,  is  sufficient.  If  the  common  law  (which  is  common  reason 
in  matters  of  justice)  were  permitted  to  prevail  there  would  be 
no  difficulty.  In  the  absence  of  any  head  officer  the  court  could 
direct  service  to  be  made  on  such  official  persons  as  it  might  deem 
sufficient.  But  when  a  statute  intervenes  and  displaces  the  com- 
mon law  we  are  brought  to  a  question  of  words  and  are  bound 
to  take  the  words  of  the  statute  as  law.  The  cases  are  numerous 
which  decide  that  where  a  particular  method  of  serving  process 
is  pointed  out  by  statute,  that  method  must  be  followed,  and  the 
rule  is  especially  exacting  in  reference  to  corporations.     Kibbe 

H.  T.  p.— 4 


50  PROCESS.  [Chap.  I. 

V.  Benson,  17  Wall.  624;  Alexandria  v.  Fairfax,  95  U.  S.  774; 
Settlemier  v,  Sullivan,  97  U.  S.  444 ;  Evans  v.  Dublin,  etc.,  Ry., 
14  M.  &  W.  142 ;  Walton  v.  Universal  Salvage  Co.,  16  M.  &  W. 
438 ;  Brydolf  v.  Wolf,  Carpenter  &  Co.,  32  Iowa,  509 ;  Hoen  v. 
Atlantic  &  Pacific  Railway  Co.,  64  Missouri,  561 ;  Lehigh  Valley 
Ins.  Co.  V.  Fuller,  81  Penn.  St.  398.  The  courts  of  Wisconsin 
strictly  adhere  to  this  rule.  Congar  v.  Railroad  Co.,  17  Wiscon- 
sin, 477,  485 ;  City  of  Watertown  v.  Robinson,  59  Wisconsin,  513 ; 
City  of  Watertown  v.  Robinson,  69  Wisconsin,  230.  The  two 
last  cited  related  to  the  charter  now  under  consideration.  In  the 
first  case  service  was  made  upon  the  city  clerk  and  upon  the 
chairman  of  the  board  of  street  commissioners  whilst  the  board 
was  in  session,  in  the  absence  of  the  mayor,  who  could  not  be 
found  after  diligent  search.  The  court,  after  referring  to  the 
provisions  of  the  charter  and  the  Revised  Statutes  on  the  subject, 
say:  "The  question  whether  the  Revised  Statutes  control  as  to 
the  manner  of  service  is  not  a  material  inquiry  here,  because  both 
the  charter  and  general  provision  require  the  service  to  be  made 
upon  the  mayor,  but  no  service  was  made  upon  that  officer  as 
appears  by  the  return  of  the  sheriff.  The  principle  is  too  ele- 
mentary to  need  discussion,  that  a  court  can  only  acquire  juris- 
diction of  a  party,  where  there  is  no  appearance,  by  the  service 
of  process  in  the  manner  prescribed  by  law."  In  the  last  case 
(decided  in  1887)  service  was  made  in  the  same  manner  as  in 
the  previous  one,  and  the  court  say:  "When  the  statute  pre- 
scribes a  particular  mode  of  service,  that  mode  must  be  followed. 
Ita  lex  scripta  est.  There  is  no  chance  to  speculate  whether 
some  other  mode  will  not  answer  as  well.  This  has  been  too 
often  held  by  this  court  to  require  further  citations.  *  *  * 
When  the  statute  designates  a  particular  officer  to  whom  the 
process  may  be  delivered,  and  with  whom  it  may  be  left,  as  service 
upon  the  corporation,  no  other  officer  or  person  can  be  substituted 
in  his  place.  The  designation  of  one  particular  officer  upon  whom 
service  may  be  made  excludes  all  others.  The  temporary  incon- 
venience arising  from  a  vacancy  in  the  office  of  mayor  affords  no 
good  reason  for  a  substitution  of  some  other  officer  in  his  place, 
upon  whom  service  could  be  made,  by  unwarrantable  construction 
not  contemplated  by  the  statute."  It  is  unnecessary  to  look 
farther  to  see  what  the  law  of  Wisconsin  is  on  this  subject.  It 
is  perfectly  clear  that  by  that  law  the  service  of  process  in  the 
present  case  was  ineffective  and  void. 


I 


Sec.  2.  ]  amy  v.  watertown.  51 

There  is  a  question  entirely  outside  of  the  one  which  we  have 
been  discussing ;  it  is,  whether  the  state  law,  as  thus  ascertained, 
is  objectionable  on  the  score  of  being  repugnant  to  the  Constitu- 
tion of  the  United  States,  Does  it  impose  embarrassments  in  the 
way  of  the  creditor  in  pursuit  of  his  claim,  which  did  not  exist 
when  his  debt  was  created  ?  The  point  is  not  distinctly  made  by 
the  counsel  of  the  plaintiffs  in  error,  although  it  is  hinted  at  in 
their  brief.  But  no  statute  has  been  pointed  out  to  us,  showing 
any  change  in  the  law  of  the  State  in  this  regard.  As  the  record 
stands,  we  have  no  sufficient  ground  for  discussing  the  question 
in  the  present  case. 

With  motives  we  have  nothing  to  do.  Certainly  improper 
motives  cannot  be  attributed  to  a  state  legislature  in  the  passage 
of  any  laws  for  the  government  of  the  State.  Individuals  may 
be  actuated  by  improper  motives,  and  may  take  advantage  of 
defects  and  imperfections  of  the  law  for  the  purpose  of  defeating 
justice.  The  mayor  of  Watertown  may  have  been  actuated  by 
such  a  motive  in  resigning  his  office  immediately  after  being 
inducted  into  it.  But  he  had  a  legal  right  to  resign ;  and  if  the 
plaintiffs  are  prejudiced  by  his  action  it  is  damnum  absque 
injuria.  The  plaintiffs  are  in  no  worse  case  than  were  the 
creditors  of  the  city  of  Memphis  after  the  repeal  of  its  charter 
and  the  establishment  of  a  taxing  district  in  its  stead.  The  State 
has  plenary  power  over  its  municipal  corporations  to  change  their 
organization,  to  modify  their  method  of  internal  government,  or 
to  abolish  them  altogether.  Contracts  entered  into  with  them  by 
private  parties  cannot  deprive  the  State  of  this  paramount 
authority.     See  Meriwether  v.  Garrett,  102  U.  S.  472. 

The  cases  of  Broughton  v.  Pensacola,  93  U.  S.  266,  and  Mobile 
V.  Watson,  116  U.  S.  289,  cannot  aid  the  plaintiffs  in  this  case. 
Those  were  cases  in  which  a  new  name  was  given  to  an  old  cor- 
poration, or  a  new  corporation  was  made  out  of  an  old  one — 
that  was  the  substance  of  it — and  the  question  was  whether  the 
new  corporation,  or  the  old  corporation  by  its  new  name,  was 
liable  for  the  old  debts ;  and  we  held  that  it  was.  That  was  a 
question  of  liability,  not  a  question  of  procedure.  There  the  way 
was  open  for  looking  into  the  actual  relations  of  the  old  and  new 
corporations,  and  deciding  according  to  the  justice  of  the  case. 
Here  we  are  bound  by  statute ;  and  not  by  the  state  statute  alone, 
but  by  the  act  of  Congress,  which  obliges  us  to  follow  the  state 
statute  and  state  practice.     The  Federal  Courts  are  bound  hand 


52  PROCESS.  [Chap.  I. 

and  foot,  and  are  compelled  and  obliged  by  the  Federal  legisla- 
ture to  obey  the  state  law ;  and  according  to  this  law  the  judgment 
of  the  Circuit  Court  was  correct  and  is,  therefore. 

Affirmed. 


SETTLEMIER  v.  SULLIVAN. 

97  U.  8.  444.     [1878.] 

Plaintiff  brought  ejectment  for  certain  lands  in  Oregon,  claim- 
ing title  through  mesne  conveyances  from  the  patentee.  The 
defendant  claimed  through  an  execution  sale  under  a  judgment 
by  default  in  the  state  court.  The  sheriff 's  return  showed  service 
by  delivering  copy  to  the  defendant's  wife,  a  white  person  over 
fourteen  years  of  age,  at  his  usual  place  of  abode.  The  trial  court 
directed  a  verdict  for  plaintiff.^ 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

If  the  certificate  of  the  sheriff  were  the  only  document  in  the 
record  referring  to  the  service  of  the  complaint  and  notice,  there 
would  be  no  doubt  as  to  the  correctness  of  the  ruling  of  the  court 
below.  Service  upon  the  wife  of  the  defendant  was  not  service 
upon  him.2  No  theoretical  unity  of  husband  and  wife  can  make 
service  upon  one  equivalent  to  service  upon  the  other.  Personal 
citation  to  the  defendant,  or  his  voluntary  appearance,  is  the 
essential  preliminary  to  a  purely  personal  judgment.  The  statute 
of  the  State  in  force  at  the  time  required  service  in  cases  other 
than  those  brought  against  corporations,  or  persons  laboring 
under  some  disability,  as  minors,  or  as  being  of  unsound  mind, 
to  be  made  by  delivering  a  copy  to  the  defendant  personally ;  or, 
if  he  could  not  be  found,  to  some  white  person  of  his  family 
above  the  age  of  fourteen  years,  at  his  dwelling-house  or  usual 
place  of  abode.  If  it  be  admitted  that  substituted  service  of  this 
kind  upon  some  other  member  of  the  fam.ily  is  sufficient  to  give 
the  court  jurisdiction  to  render  a  personal  judgment  against  its 
head,  binding  him  to  the  payment  of  money  or  damages,  it  can 

1  The  statement  has  been  con-  a  wife  was  properly  served  by  de- 
densed.  livery  of  copy  to  husband.     Barnes 

2  Semble.     That   at  common   law       Notes,  406. 


Sec.  2.]  settlemier  v.  stillivan.  53 

only  be  where  the  condition  upon  which  such  service  is  permis- 
sible is  shown  to  exist.  The  inability  of  the  officer  to  find  the 
defendant  was  not  a  fact  to  be  inferred,  but  a  fact  to  be  affirma- 
tively stated  in  his  return.  The  substituted  service  in  actions 
purely  in  personem  was  a  departure  from  the  rule  of  the  common 
law,  and  the  authority  for  it,  if  it  could  be  allowed  at  all,  must 
have  been  strictly  followed. 

Such  we  find  to  be  the  ruling  of  the  Supreme  Court  of  Oregon. 
In  Trullenger  v.  Todd  (5  Ore.  39),  judgment  was  entered  by 
default  for  want  of  an  answer  by  the  clerk,  in  vacation,  under 
the  act  of  1868,  upon  a  certificate  of  the  sheriff  that  he  had 
served  the  summons  upon  the  defendant  "by  delivering  a  copy 
thereof  to  a  person  of  the  family  above  the  age  of  fourteen  years, 
at  the  dwelling-house  or  place  of  abode  of  the  defendant ; ' '  and 
the  court  held  the  certificate  insufficient  to  authorize  the  entry  of 
judgment  in  not  containing  the  fact  that  the  defendant  could  not 
be  found.  The  statute,  so  far  as  the  manner  of  service  was  con- 
cerned, was  similar  to  that  of  1861,  a  summons  being  substituted 
for  the  notice.  "The  statute,"  said  the  court,  "in  providing 
how  service  shall  be  made,  evidently  implies  that  when  a  summons 
is  placed  in  the  hands  of  an  officer  for  service,  that  he  will  use 
ordinary  diligence,  at  least,  to  find  the  party  against  whom  the 
summons  is  issued,  in  order  that  he  may  make  personal  service 
upon  him ;  but  after  using  ordinary  diligence,  if  he  should  fail  to 
find  such  party,  constructive  service  may  be  made;  and  when 
such  service  is  made  the  certificate  should  contain  the  fact  that 
the  party  could  not  be  found."  The  court  having  thus  held 
the  judgment  void,  the  only  question  left  for  its  determination 
was  whether  it  could  entertain  an  appeal  from  it,  as  a  void 
judgment  could  be  disregarded  and  treated  as  a  nullity  whenever 
any  right  was  claimed  under  it,  whether  set  aside  or  not.  It 
maintained  the  appeal  solely  for  the  purpose  of  reversing  the 
judgment  and  thus  purging  its  records. 

Here  it  is  contended  that  the  recital  in  the  entry  of  the  default 
of  the  defendant  in  the  ease  in  the  State  court,  "that,  although 
duly  served  with  process,  he  did  not  come,  but  made  default,"  is 
evidence  that  due  service  on  him  was  made,  notwithstanding  the 
return  of  the  sheriff,  and  supplies  its  omission.  But  the  answer 
is,  that  the  recital  must  be  read  in  connection  with  that  part  of 
the  record  which  gives  the  official  evidence  prescribed  by  statute. 
This  evidence  must  prevail  over  the  recital,  as  the  latter,  in  the 


54  PROCESS.  [Chap.  I. 

absence  of  an  averment  to  the  contrary,  the  record  being  com- 
plete, can  only  be  considered  as  referring  to  the  former. 

We  do  not  question  the  doctrine  that  a  court  of  general  juris- 
diction acting  within  the  scope  of  its  authority — that  is,  within 
the  boundaries  which  the  law  assigns  to  it  with  respect  to  sub- 
jects and  persons — is  presumed  to  act  rightly  and  to  have  juris- 
diction to  render  the  judgment  it  pronounces,  until  the  contrary 
appears.  But  this  presumption  can  only  arise  with  respect  to 
jurisdictional  facts,  concerning  which  the  record  is  silent.  It 
cannot  be  indulged  when  the  evidence  respecting  the  facts  is 
stated,  or  averments  respecting  them  are  made.  If  the  record 
is  silent  with  respect  to  any  fact  which  must  have  been  established 
before  the  court  could  have  rightly  acted,  it  will  be  presumed  that 
such  fact  was  properly  brought  to  its  knowledge.  But  if  the 
record  give  the  evidence  or  make  an  averment  with  respect  to 
a  jurisdictional  fact,  it  will  be  taken  to  speak  the  truth,  and  the 
whole  truth,  in  that  regard ;  and  no  presumption  will  be  allowed 
that  other  and  different  evidence  was  produced,  or  that  the  fact 
was  otherwise  than  as  averred.  "If,  for  example,"  to  give  an 
illustration  from  the  case  of  Galpin  v.  Page  (18  Wall.  366),  "it 
appears  from  the  return  of  the  officer  or  the  proof  of  service 
contained  in  the  record  that  the  summons  was  served  at  a  particu- 
lar place,  and  there  is  no  averment  of  any  other  service,  it  will 
not  be  presumed  that  service  was  also  made  at  another  and 
different  place;  or  if  it  appear  in  like  manner  that  the  service 
was  made  upon  a  person  other  than  the  defendant,  it  will  not  be 
presumed,  in  the  silence  of  the  record,  that  it  was  made  upon  the 
defendant  also. ' ' 

We  are  of  opinion  that  the  principle  here  stated  applies  in  this 
case.  The  record  from  the  State  court  showed  service  upon  the 
wife  of  the  defendant  in  that  case,  and  not  upon  the  defendant ; 
and  in  the  absence  of  any  finding  of  the  court  that  other  service 
was  made,  or  the  finding  of  a  fact  from  which  other  service  must 
necessarily  be  inferred,  none  will  be  presumed.  Other  service 
will  not  be  presumed  from  its  assumption  in  a  recital  in  the  entry 
of  a  default.  It  follows  that  the  judgment  of  the  court  below 
must  be  affirmed ;  and  it  is 

So  ordered.^ 

3  Accord :    Lane    v.    Garbee,    105       eeived  actual  notice.     Land   Co.  v. 
Mo.  355;   the  result  is  not  affected       Lane,  lOG  Va.  304. 
by  the  fact  that  the  defendant  re- 


Sec.  2,]  craig  v.  qisborne.  55 

Mr.  Justice  Bradley,  with  whom  concurred  Mr.  Chief  Justice 
Waite  and  Mr.  Justice  Harlan,  dissenting. 

I  dissent  from  the  judgment  in  this  case. 

The  entry  of  judgment  recites  that  process  was  duly  served. 
The  return  of  the  sheriff,  though  it  does  not  state  all  the  facts 
necessary  to  make  the  service  good,  yet  does  not  contradict  the 
recital;  and  no  allegation  was  made  that  the  defendant  could 
have  been  found  to  be  personally  served  with  process.  Under 
these  circumstances  I  think  the  judgment  cannot  be  assailed 
collaterally. 


CRAIG  v.  GISBORNE. 

79  Massachusetts,  270.     [1859.] 

Action  of  Tort.  The  officer  made  this  return  upon  the  writ: 
' '  Suffolk,  ss.,  April  25,  1859.  By  virtue  of  this  writ  I  have  made 
diligent  search  for  the  within  named  Frederick  N.  Gisborne,  but 
could  neither  find  him  nor  any  last  and  usual  place  of  abode  of 
his  in  my  precinct,  except  on  board  of  the  steamer  bound  for 
Liverpool  via  Halifax,  where  he  had  taken  passage,  and  was  then 
hid  away  in  some  part  of  said  steamer.  I  therefore  attached  a 
chip  as  the  property  of  said  Gisborne,  and  left  him  a  summons 
in  his  berth  on  board  of  said  steamer,  for  his  appearance  to 
answer  as  within  directed." 

In  the  Court  of  Common  Pleas  the  plaintiff  moved  for  a  de- 
fault. But  Bishop,  J.,  ruled  that  the  service  was  insufficient  and 
that  the  court  had  no  jurisdiction.  To  this  ruling  the  plaintiff 
excepted. 

Hoar,  J.  There  was  no  service  of  the  writ  in  any  manner 
authorized  by  law.  The  officer  returns  that  he  found  no  last  and 
usual  place  of  abode  of  the  defendant;  and  the  defendant's  berth 
in  a  steamer  in  which  he  had  taken  passage  is  clearly  not  such. 
There  was  no  personal  service,  and  the  fact  that  he  was  hidden 
in  the  steamer  is  no  reason  for  substituting  for  personal  service 
the  leaving  of  a  copy  where  he  might  find  it. 

Exceptions  overruled.'^ 

1  In  People  v.  Judge,  38  Mich.  copy  had  been  left  with  an  uncon- 
310,    service   was    vacated   where   a       scions  defendant. 


56  PROCESS.  [Chap.  I. 

PHOENIX  INS.  CO.  V.  WULF. 

9  Bissell,  285  (U.  S.  C.  C).     [188p.] 

Gresham,  J.  The  defendant,  Bertha  Wulf,  owned  certain 
real  estate  in  Indianapolis,  which  she  conveyed,  her  husband 
joining,  to  a  third  person,  who  conveyed  it  back  to  her  husband, 
Henry  Wulf.  The  husband,  the  wife  joining,  then  mortgaged 
the  same  property  to  the  Phoenix  Mutual  Life  Insurance  Com- 
pany to  secure  a  loan.  The  mortgage  showed  upon  its  face  that 
it  was  to  secure  a  loan  to  the  husband.  The  loan  was  not  paid 
at  maturity,  and  afterward  the  mortgage  was  foreclosed  in  this 
court.  Bertha  Wulf  subsequently  brought  suit  in  this  court  to 
set  aside  her  deed  to  the  third  party,  his  deed  to  her  husband, 
and  the  mortgage  of  herself  and  husband  to  the  insurance  com- 
pany, on  the  sole  ground  that  she  was  a  minor  when  she  executed 
those  instruments.  The  service  in  the  foreclosure  suit  was  after 
Bertha  Wulf  had  attained  her  majority,  and  the  decree  against 
her  was  by  default. 

The  marshal's  return  shows  that  the  subpoena  in  the  fore- 
closure suit  was  properly  served  on  Henry  Wulf,  in  compliance 
with  equity  rule  13.  As  to  the  wife,  the  return  reads  thus: 
"I  served  Bertha  Wulf  by  leaving  a  copy  for  her  with  her  hus- 
band." Sometime  after  the  wife  commenced  her  suit,  as  already 
stated,  the  marshal  appeared  and  asked  leave  to  amend  his  return, 
so  as  to  show  that  he  had  served  the  subpoena  on  her  by  leaving 
a  copy  for  her  with  her  husband,  at  her  dwelling  house  or  usual 
place  of  abode. 

The  defendant,  Henry  Wulf,  occupied  a  building  at  the  corner 
of  Virginia  avenue  and  Coburn  street,  in  Indianapolis,  both  as  a 
dwelling  and  a  family  grocery.  In  the  lower  story  there  were 
two  rooms,  the  main  one  being  occupied  as  a  grocery  and  the 
back  smaller  one  for  storage  purposes.  These  two  rooms  were 
separated  by  a  hall  which  was  entered  by  a  door  from  Coburn 
street,  and  also  from  Virginia  avenue  through  the  grocery.  A 
stairway  led  from  the  hall  to  the  second  story,  where  the  family 
dwelt,  eating  and  sleeping.  The  hall  and  stairway  were  accessible 
in  both  ways,  and  were,  in  fact,  approached  in  both  ways.  The 
deputy  marshal  found  the  husband  in  the  grocery  and  there 
served  the  subpoena  on  him,  and  then  inquired  for  his  wife,  and 
was  informed  that  it  was  early  in  the  morning  and  she  was 


Sec.  2.]  phoenix  ins.  co.  v.  wulp.  57 

upstairs  in  bed  where  the  family  lived.  The  officer,  then,  in  the 
grocery,  handed  to  the  husband  a  copy  of  the  subpoena  for  his 
wife. 

Upon  these  facts  was  there  a  valid  service  on  the  wife  under 
the  13th  equity  rule,  which  declares  that  the  service  of  all 
subpoenas  shall  be  by  delivery  of  a  copy  thereof,  by  the  officer 
serving  the  same,  to  the  defendant  personally,  or  by  leaving  a 
copy  thereof  at  the  dwelling  house  or  usual  place  of  abode  of 
each  defendant  with  some  adult  person  who  is  a  member  or 
resident  in  the  family  ? 

It  is  urged  by  counsel  that  the  officer  handed  to  the  husband 
a  copy  of  the  subpoena  when  he  was  not  at  the  ' '  dwelling  house 
or  usual  place  of  abode ' ' — that  the  grocery  room  was  as  distinct 
from  the  residence  in  the  upper  story  as  if  the  two  had  been  in 
separate  buildings  wide  apart.  That  construction  of  the  rule  is 
narrow  and  unreasonable.  It  is  conceded  that  if  the  officer  had 
handed  the  copy  to  the  husband  in  the  hall  the  service  would  have 
been  good,  because  the  upper  story  was  approached  only  through 
the  hall,  and  it  was  therefore  connected  with  the  dwelling.  There 
were  but  two  ways  of  ingress  to  the  residence  or  upper  story — 
one  from  Virginia  avenue,  through  the  grocery,  and  the  other 
through  the  door  opening  from  Coburn  street.  The  family  passed 
in  and  out  both  ways,  as  best  suited  their  convenience.  A  copy 
was  left  with  one  who  understood  its  contents  and  was  likely  to 
deliver  it  to  the  person  for  whom  it  was  intended. 

The  case  of  Kibbe  v.  Benson,  17  Wallace,  625,  is  cited  against 
the  sufficiency  of  the  service.  That  was  an  action  of  ejectment 
in  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Illinois,  which  had  adopted  the  statute  of  that  state 
relating  to  actions  of  ejectment.  After  judgment  was  entered 
for  the  plaintiff  by  default,  the  defendant  filed  a  bill  in  equity 
to  set  aside  the  judgment  on  the  ground  that  he  had  no  notice 
or  knowledge  of  the  pendency  of  the  suit,  and  for  fraud.  The 
Illinois  statute  required  that  in  actions  of  ejectment,  when  the 
premises  were  actually  occupied,  the  declaration  should  be  served 
by  delivering  a  copy  to  the  defendant  named  therein,  who  should 
be  in  the  occupancy  of  the  premises,  or,  if  absent,  by  leaving  the 
same  with  a  white  person  of  the  family  of  the  age  of  ten  years 
or  upwards  "at  the  dwelling  house  of  such  defendant." 

On  the  trial  of  the  equity  suit  one  Turner  swore  that  when  he 
called  at  Benson's  house  to  serve  upon  him  the  declaration,  he  was 


58  PROCESS.  [Chap.  I. 

informed  by  Benson's  father  that  Benson  was  not  at  home,  and 
that  while  the  father  was  standing  near  the  southeast  corner  of 
the  yard,  adjoining  the  dwelling  house  and  inside  the  yard,  and 
not  over  125  feet  from  the  dwelling  house,  he  handed  him  a  copy 
of  the  declaration,  explaining  its  nature,  and  requesting  him  to 
hand  it  to  his  son,  after  which  the  father  threw  the  copy  upon 
the  ground  muttering  some  angry  words. 

There  was  a  conflict  in  the  testimony,  but  the  Circuit  Court 
decided  that  even  if  the  copy  was  handed  to  the  father,  as  testi- 
fied to  by  Turner,  the  service  was  not  sufficient,  and  set  aside  the 
judgment  which  had  been  entered  by  default,  and  the  decree  was 
affirmed  on  appeal.  In  deciding  the  case  the  Supreme  Court  say, 
"it  is  not  unreasonable  to  require  that  it  (copy  of  the  declara- 
tion) should  be  delivered  on  the  steps  or  on  a  portico,  or  in  some 
out  house  adjoining  to  or  immediately  connected  with  the  family 
mansion,  where,  if  dropped  or  left,  it  would  be  likely  to  reach 
its  destination.  A  distance  of  125  feet  and  in  a  corner  of  the 
yard  is  not  a  compliance  with  the  requirements. ' '  ^ 

Rule  13  should  receive  a  liberal  construction.  It  does  not 
require  the  copy  of  the  subpoena  to  be  left  with  a  person  in  the 
dwelling  house;  it  is  sufficient  if  the  person  who  receives  the 
copy  is  at  the  dwelling  house.  The  rule  is  satisfied  by  a  service 
outside  the  dwelling  house  at  the  door,  just  as  well  as  inside  the 
house. 

I  think  Bertha  Wulf  was  in  court  when  the  decree  of  fore- 
closure was  entered.  This  is  not  a  motion  to  correct  the  plead- 
ings, judgment  or  process. 

Courts  have  the  power  to  permit  officers  to  amend  their  returns 
to  both  mesne  and  final  process,  and  the  power  is  exercised 
liberally  in  the  interest  of  justice,  especially  when  the  rights 
of  third  parties  are  not  to  be  affected  by  the  amendment. 

In  the  exercise  of  a  sound  discretion  they  have  allowed  officers 
to  amend  their  returns  according  to  the  real  facts  after  the  lapse 
of  several  years,  and  when  there  is  no  doubt  about  the  facts 
such  amendments  have  been  allowed  after  the  officer's  term  has 
expired. 

1  A  hotel  at  which  a  non-resident  boarding  house  may  continue  to  be 

was  stopping  for  several  weeks  was  the  defendant 's  usual  place  of  abode 

not  his  usual  place  of  abode  within  or    residence   during   a   considerable 

the  meaning  of  the  statute,  White  v.  absence.     Lee   v.   McFee,  45   Minn. 

Prince,  36  111.  416.    But  a  hotel  or  33. 


Sec.  2.]  earle  v.  mcveigh,  59 

I  think  justice  requires  that  the  amendment  should  be  allowed 
in  this  case. 


EARLE  V.  McVeigh. 

91  U.  8.  503.      [1875.] 

Two  suits  were  commenced  by  the  respondents  against  the 
present  complainant,  and  his  son,  who  was  not  served,  to  enforce 
the  payment  of  the  several  promissory  notes  described  in  the 
declarations  in  those  suits;  and  the  plaintiffs  therein  obtained 
service  of  process  in  the  respective  suits  on  the  same  day  in  the 
words  following :  ' '  Executed  the  within  summons  February  24, 
1862,  on  James  H.  McVeigh,  by  leaving  a  copy  thereof  posted 
at  the  front  door  of  his  usual  place  of  abode ;  neither  he  nor  his 
wife,  nor  any  white  person,  who  is  a  member  of  his  family  and 
above  the  age  of  sixteen  years,  being  found  at  his  said  usual 
place  of  abode. ' ' 

Declarations  in  due  form  were  filed  in  the  respective  suits, 
and,  the  defendant  not  appearing  in  either,  judgment  was  ren- 
dered against  him  in  the  first  suit  for  the  sum  of  $3,535.49,  and 
in  the  second  for  the  sum  of  $8,014.34,  with  interest  in  each 
case,  as  set  forth  in  the  record. 

Proceedings  were  subsequently  taken  to  sell  certain  lands  to 
satisfy  these  judgments.  The  plaintiff  filed  a  bill  to  enjoin,  and 
the  case  was  removed  to  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  Virginia,  where  the  temporary  injunc- 
tion was  made  perpetual. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court.    *    *    * 

Notice  to  the  defendant,  actual  or  constructive,  is  an  essential 
prerequisite  of  jurisdiction.  Due  process  with  personal  service, 
as  a  general  rule,  is  sufficient  in  all  cases ;  and  such  it  is  believed 
is  the  law  of  the  State  where  the  judgments  were  recovered  in 
this  controversy,  in  all  cases  where  such  service  is  practicable. 
But  the  laws  of  that  State  also  provide  for  service  in  three  classes 
of  cases  in  which  personal  service  cannot  be  effected:  (1)  Resi- 
dents who  are  temporarily  absent  from  home.  (2)  Service  may 
also  be  made  upon  persons  not  residents  of  the  State.  (3)  Where 
the  party  resides  in  the  State,  in  case  it  is  not  known  in  what 
particular  county  he  has  his  residence. 


60  PROCESS.  [Chap.  I. 

1.  Temporary  absence  from  home  will  not  defeat  service,  as  in 
that  case  the  statute  provides  that  notice  may  be  given  to  the 
party  by  delivering  a  copy  of  the  process  to  the  party  in  person ; 
or,  if  he  be  not  found  at  his  usual  place  of  abode,  by  delivering 
such  copy  and  giving  information  of  its  purport  to  his  wife,  or 
any  white  person  found  there,  who  is  a  member  of  his  family, 
and  above  the  age  of  sixteen  years ;  or,  if  neither  he  nor  his  wife 
nor  any  such  white  person  be  found  there,  by  leaving  such  copy 
posted  at  the  front  door  of  his  usual  place  of  abode. 

2.  Persons  not  residing  in  the  State  may,  in  a  proper  case,  be 
served  by  the  publication  of  the  notice  once  a  week  for  four 
consecutive  weeks  in  a  newspaper  printed  in  the  State.  Code 
1860,  p.  703. 

3.  Provision  is  made  in  respect  to  the  third  class,  that  on  affida- 
vit that  a  defendant  is  a  non-resident  of  the  State,  or  that  dili- 
gence has  been  used  to  ascertain  in  what  county  or  corporation 
he  is,  without  effect,  or  that  process  directed  to  the  officer  of  the 
county  or  corporation  in  which  he  resides  or  is  has  been  twice 
delivered  to  such  officer  more  than  ten  days  before  the  return- 
day,  and  been  returned  without  being  executed,  an  order  of 
publication  may  be  entered  against  such  defendant.  Code,  p. 
707. 

Doubtless  constructive  notice  may  be  sufficient  in  certain  cases ; 
but  it  can  only  be  admitted  in  eases  coming  fairly  within  the 
provisions  of  the  statute  authorizing  courts  to  make  orders  for 
publication,  and  providing  that  the  publication,  when  made,  shall 
authorize  the  court  to  decide  and  decree.  Hollingsworth  v.  Bar- 
bour, 4  Pet.  475 ;  Regina  v.  Lightfoot,  26  Eng.  L.  &  Eq.  177 ; 
Nations  v.  Johnson,  24  How.  205 ;  Galpin  v.  Page,  18  Wall.  369. 

When  the  law  provides  that  notice  may  be  posted  on  the 
"front-door  of  the  party's  usual  place  of  abode,"  in  the  absence 
of  the  family,  the  intention  evidently  is  that  the  person  against 
whom  the  notice  is  directed  should  then  be  living  or  have  his  home 
in  the  said  house.  He  may  be  temporarily  absent  at  the  time 
the  notice  is  posted,  but  the  house  must  be  his  usual  place  of 
abode,  so  that,  when  he  returns  home,  the  copy  of  the  process 
posted  on  the  front  door  will  operate  as  notice,  which  is  all  that 
the  law  requires.  By  the  expression,  "the  usual  place  of  abode, " 
the  law  does  not  mean  the  last  place  of  abode,  for  a  party  may 
change  his  place  of  abode  every  month  in  the  year.  Instead  of 
that,  it  is  only  on  the  door  of  his  then  present  residence  where 


Sec.  2.]  earle  v.  mcveigh.  61 

the  notice  may  be  posted,  and  constitute  a  compliance  with  the 
legal  requirement. 

Apply  that  rule  to  the  case  before  the  court,  and  it  is  clear 
that  the  notice  was  insufficient.  Neither  the  complainant  nor  his 
family  resided  there;  on  the  contrary,  the  case  shows  that  his 
family  left  that  city  six  weeks  before  the  same  was  occupied  by 
the  Federal  forces,  and  that  they  departed,  leaving  no  white 
person  in  the  house  from  w^hich  they  departed,  and  that  these 
facts  were  well  known  to  the  attorney  of  the  respondents  and 
to  the  officer  who  made  the  returns  in  question,  which  was  made 
seven  months  after  the  complainant  had  left  the  county  and  was 
residing  within  the  Confederate  lines. 

Tested  by  these  considerations,  it  is  clear  that  the  house  where 
the  notice,  if  any,  was  posted,  was  not  at  that  time  the  usual 
place  of  abode  of  the  defendant  in  those  suits;  and  it  follows 
that  the  judgments  founded  on  such  defective  notices  are  abso- 
lutely void. 

Special  reference  is  made  to  the  act  of  the  10th  of  February, 
1862,  as  having  some  bearing  on  the  case,  but  the  record  shows 
that  the  present  complainant  had  left  his  former  residence  seven 
months  before  the  passage  of  that  act  and  followed  his  family 
within  the  insurgent  lines.  He  abandoned  the  business  in  which 
he  was  engaged  and  was  known,  as  is  admitted  in  the  stipulation 
of  the  parties,  throiighout  the  whole  period  of  the  rebellion,  as 
having  sympathized  with  it  and  adhered  to  its  fortunes. 

Other  defenses  failing,  it  is  suggested  by  the  respondents  that 
the  complainant,  when  he  departed  from  the  city,  left  an  agent 
resident  there ;  but  it  is  a  sufficient  answer  to  that  suggestion 
to  say  that  the  agent  referred  to  did  not  reside  in  the  house  where 
it  is  alleged  the  notices  were  posted,  and  that  he  had  no  authority 
whatever  to  accept  or  waive  notice  to  the  complainant  in  any 
such  proceeding. 

Concede  that  due  service  might  have  been  made  under  the  act 
providing  for  proceedings  against  non-residents;  still  it  is  clear 
that  the  concession  cannot  benefit  the  respondents,  as  they  did 
not  attempt  to  comply  with  the  conditions  contained  in  either 
section  of  that  act.     Sess,  Acts,  1861.  p.  58. 

Viewed  in  any  light,  it  is  plain  that  the  case  falls  Avithin  the 
rule  that  the  service  of  process  by  posting  a  copy  on  the  door  of 
a  dwelling  house  is  not  a  good  service,  if  it  appears  by  competent 
evidence  that  the  house  was  not  the   usual   place  where   the 


62  PROCESS.  [Chap.  I. 

defendant  or  his  family  resided  at  the  time  the  notice  was  posted. 
Harris  v.  Hardeman,  14  How.  340 ;  Buchanan  v.  Rucker,  9  East, 
192;  Boswell  v.  Otis,  9  How.  350;  Oakley  v.  Aspinwall,  4 
Comst.  513. 

Even  in  proceedings  in  rem,  notice  is  requisite  in  order  that 
the  sentence  may  have  any  validity.  Every  person,  said  Mar- 
shall, C.  J.,  may  make  himself  a  party  to  such  a  proceeding, 
and  appeal  from  the  sentence,  but  notice  of  the  controversy  is 
necessary  in  order  that  one  may  become  a  party ;  and  it  is  a 
principal  of  natural  justice,  ^of  universal  obligation,  that,  before 
the  rights  of  an  individual  can  be  bound  by  a  judicial  sentence, 
he  shall  have  notice,  either  actual  or  implied,  of  the  proceedings 
against  him.     The  Mary,  9  Cranch,  144. 

No  man  shall  be  condemned  in  his  person  or  property  without 
notice,  and  an  opportunity  to  be  heard  in  his  defense,  is  a  maxim 
of  universal  application,  and  it  affords  the  rule  of  decision  in 
this  case. 

Decree  affirmed. 


(b)   Privilege  and  Exemption  from.  Service} 

COLE  V.  HAAVKINS. 

2  Strange,  1094.     [1729.] 

A  copy  of  a  bill  of  Middlesex  was  served  on  the  defendant, 
whilst  he  was  attending  the  sittings,  in  a  cause  wherein  he  was  a 
defendant.  And  upon  motion  against  the  attorney  for  a  con- 
tempt, it  was  contended  to  be  right,  because  it  was  not  an  arrest, 
which  re-strained  him  of  his  liberty.  But  the  court  said  that  the 
privilege  was  designed  as  well  to  prevent  any  interruption  of  the 
business  of  the  court,  and  it  was  equally  a  contempt.  And  they 
would  have  committed  the  attorney  if  he  had  not  consented  to 
waive  the  proceedings  and  pay  costs. 

1  For  the  privilege  of  members  of 
legislative  bodies,  see  Rhodes  v. 
Walsh,  23  L.  R.  A.  632,  note;  Berlet 
V.  Weary,  60  L.  R.  A.  609. 


Sec.  2.  ]  walpole  v.  Alexander.  63 

WALPOLE  V.  ALEXANDER. 

3  Douglas,  45.     [1782.] 

The  defendant  obtained  a  rule  to  show  cause  why  he  should 
not  be  discharged  out  of  custody  on  filing  common  bail.  The 
application  was  made  on  three  grounds :  1.  That  he  had  come 
from  France  as  a  witness  in  a  cause  of  Simond  v.  Hankey,  to  be 
tried  at  the  sittings ;  2.  That  he  had  been  discharged  by  a  com- 
mission of  bankrupt  subsequent  to  the  debt  for  which  he  was 
arrested ;  and  3.  That  a  suit  was  pending  in  France  respecting 
the  same  subject  matter. 

The  attorney-general  and  Cowper  showed  cause.  As  to  the 
privilege  of  the  defendant  as  a  witness  it  appears  that  he  arrived 
in  London  on  the  20th  of  December,  1781.  On  the  seventeenth 
of  that  month  the  cause  in  which  he  was  to  be  a  witness  was  put 
off,  in  consequence  of  a  letter  received  from  him,  stating  that  he 
could  not  attend  until  after  the  next  term.  He  swears  in  his  affi- 
davit that  on  coming  to  town  he  was  served  with  a  subpoena, 
by  his  own  desire,  which  was  on  the  20th  of  December,  the  last 
day  of  the  sittings.  Whether  the  subpoena  was  for  the  sittings 
after  the  last  or  the  next  term,  does  not  appear  on  the  affidavit, 
but  as  no  subpoena  issued  after  the  12th  of  December,  it  must 
have  been  for  the  last  term,  when,  by  consent,  the  cause  was 
postponed.  He  was  arrested  on  the  28th  of  December,  at  which 
time  there  was  no  process  by  which  he  could  be  compelled  to 
attend  as  a  witness.  The  protection  afforded  to  witnesses  is  not 
on  their  own  account,  but  for  purposes  of  justice ;  and  when  the 
defendant  found  that  the  cause  could  not  come  on  at  those  sit- 
tings and  that  it  was  unsafe  for  him  to  remain,  he  might  have 
returned.  It  is  stated  in  the  affidavit  that  an  application  was 
intended  to  be  made  for  permission  to  examine  him  upon  inter- 
rogatories, but  that  allegation  is  insufficient,  for  the  consent  of 
both  parties  is  necessary  to  that  proceeding,  and  it  does  not  ap- 
pear that  it  could  have  been  obtained.  (The  court  giving  no 
opinion  on  the  two  latter  grounds  of  the  application,  the  argu- 
ments of  counsel  on  those  heads  are  omitted.) 

Lord  Mansfield  (stopping  Dunning,  who  was  for  the  rule). 
This  is  the  first  case  of  a  witness  coming  from  abroad  who  has 
required  the  protection  of  the  court.  That  protection  is  extended 
to  witnesses  coming  from  abroad,  as  well  as  to  those  who  are 


64  PROCESS.  [Chap.  I. 

resident  in  this  country.  Although  in  England  a  party  may 
have  the  benefit  of  the  evidence  of  a  witness  who  has  been  ar- 
rested, by  means  of  a  habeas  corpus  ad  testificandiun,  yet,  in 
order  to  encourage  witnesses  to  come  forward  voluntarily,  they 
are  privileged  from  arrest.  This  privilege  protects  them  in  com- 
ing, in  staying,  and  in  returning,  providing  they  act  hotia  fide, 
and  without  delay,  which  is  a  question  of  reasonableness.  Every 
reason  which  applies  to  the  protection  of  a  witness  at  home  holds 
more  strongly  with  regard  to  a  witness  who  comes  from  abroad. 
The  creditor  is  not  injured  by  his  coming;  for  unless  he  came, 
there  would  be  no  opportunity  of  arresting  him.  The  service  of 
the  subpoena  abroad  would  be  an  useless  form ;  he  cannot  be 
punished  for  not  coming;  if  he  comes  at  all,  then  it  must  be 
voluntarily.  The  cause  depending  on  the  evidence  of  a  witness 
who  is  out  of  the  country,  the  time  of  trial  must  necessarily  be 
uncertain.  The  only  question  then  to  be  considered  is  whether, 
in  such  case,  the  witness  comes  ha7ui  fide  or  collusively. 

There  never  was  a  fairer  case  than  the  present.  The  parties 
would  not  consent  to  examine  the  witness  upon  interrogatories, 
or  to  put  off  the  trial ;  an  application  was  therefore  made  to  me, 
upon  affidavits  and  letters  from  the  witness.  I  proposed,  and  it 
was  so  settled,  that  at  all  events  the  cause  should  go  on  after 
this  term,  whether  the  witness  came  or  not.  In  the  meantime  he 
arrived  before  the  sittings  were  over;  but  I  do  not  wonder  that 
the  parties  did  not  apply  to  bring  on  the  cause,  for  it  was  near 
Christmas.  It  is  admitted  that  he  was  protected  for  some  time — 
why  not  until  the  next  sittings?  Was  he  to  go  back  again  to 
Paris,  merely  to  return  here  this  term,  putting  the  parties  to 
an  enormous  expense  ?  I  am  of  opinion  that  all  the  rules  which 
apply  to  the  protection  of  witnesses  here  hold  with  regard  to 
witnesses  coming  from  abroad,  and  that  the  defendant  must  be 
discharged. 

AsHURST  and  Willes,  Justices,  of  the  same  opinion. 

BuLLER,  Justice.  It  is  not  true  that  the  privilege  of  a  witness 
depends  upon  the  subpoena.  I  have  found  a  case  (E.  27,  Car. 
2)  where  a  man  was  discharged  who  came  to  London  to  make 
an  affidavit  which  might  have  been  made  in  the  country,  but  it 
was  for  the  furtherance  of  justice,  and  he  was  therefore  pro- 
tected.   No  subpoena  is  necessary  where  the  witness  lives  abroad. 

Ride  absolute. 


Sec.  2.]  meekins  v.  smith.  65 

The  discharge,  being  on  the  privilege,  was  without  the  terms 
of  filing  common  bail.^ 


MEEKINS  V.  SMITH. 
1  n.  Blackstone,  636.     [1791.] 

In  this  case  one  Davis  was  arrested  by  an  officer  of  the  sheriff 
of  Middlesex,  as  he  was  returning  from  Westminster  Hall,  where 
he  had  been  to  justify  himself  as  bail  for  the  defendant,  but 
was  rejected.  Upon  this  a  rule  was  granted  to  show  cause  why 
he  should  not  be  discharged  out  of  cu.stody,  on  the  ground  that 
he  was  entitled  to  privilege  from  arrest,  both  in  going  to  and 
returning  from  the  court,  his  attendance  being  in  the  course  of 
the  cause  and  the  administration  of  justice.  Adair  and  Clayton, 
sergeants,  showed  cause,  contending  that  as  bail  were  not  com- 
pelled to  attend  by  process  (as  witnesses  were),  but  came  volun- 
tarily into  court,  thej^  had  no  claim  to  such  a  privilege.  It  was 
holden  in  the  case  of  King  v.  Fielding,  Comb.  29,  that  a  person 
coming  to  court  to  swear  the  peace  was  liable  to  be  arrested, 
and  in  an  anonymous  case,  Salk.  544,  a  person  who  came  to  con- 
fess an  indictment  had  no  privilege  cundo  et  redeiindo,  because 
there  was  no  process  against  him.  Although  it  is  stated  in 
Impey's  Pract.  C.  B.  125,  that  bail  are  privileged,  the  case  there 
cited  from  Barnes  was  this:  "The  defendant  being  arrested  in 
returning  from  attendance  on  the  court  to  justify  his  bail  was 
ordered  to  be  discharged."  Johannet  v.  Lloyd,  Barnes,  27.  Be- 
sides, it  was  highly  improper  that  any  man  should  become  a 
security  for  the  debts  of  another,  while  his  own  were  unpaid. 

The  court  seemed  much  inclined  to  think  that  not  only  the 
witnesses,  but  all  persons  who  were  coming  to  or  returning  from 
it,  either  directly  on  the  business  of  the  court,  or  in  any  manner 
relative  to  that  business,  were  entitled  to  a  freedom  from  arrest, 
and  that  to  arrest  them  was  a  contempt  of  the  court.     Several 

1  Under    similar    circumstances    a       in  Wood  v.  Neal,  5  Gray,  535,  and 
witness  was  discharged  from  arrest       May  v.  Shumway,  16  Gray,  86. 
H.  T.  P.— 5 


66  PROCESS.  [  Chap.  I. 

cases  were  also  mentioned  of  barristers,  who  were  arrested  on 
the  circuit,  being  discharged  by  the  judge. 

Gould,  J.,  recollected  the  instance  of  a  Mr.  Hippisley,  a  bar- 
rister ^  who  was  discharged  from  an  arrest  on  the  circuit  by 
Mr.  Justice  Birch  at  Salisbury.    And 

Heath,  J.,  mentioned  a  similar  thing  having  been  done  by  the 
late  Mr.  Baron  Burland. 

At  length  it  was  agreed  that  the  rule  should  be  enlarged  till 
this  day,  when  Davis  was  brought  up  by  habeas  corpus,  which 
issued  in  the  meantime,  and  offered  again  to  justify  as  bail,  but 
was  again  rejected,  it  appearing  that  he  was  an  uncertified  bank- 
rupt, and  in  desperate  circumstances.  The  court,  therefore,  or- 
dered him  to  be  remanded,  and  at  the  same  time  laid  down  this 
general  rule,  viz.,  that  all  persons  who  had  relation  to  a  suit 
which  called  for  their  attendance,  whether  they  were  compelled 
to  attend  by  process  or  not  (in  which  number  bail  were  in- 
cluded), were  entitled  to  privilege  from  arrest  eundo  et  redewndo, 
provided  they  came  hona  fide.  But  here  there  was  a  manifest 
intention  on  the  part  of  Davis  to  impose  upon  the  court,  and 
on  that  account  he  was  not  to  be  permitted  to  avail  himself  of 
the  exemption. 

Bule  discharged.^ 

Gould,  J.,  referred  to  the  year  book  11  Ed.  4,  3,  where  it  is 
said  by  Choke  that  a  mainpernor  shall  have  the  privilege  of  the 
court. 


PERSON  V.  GRIER. 

66  New  York,  124.     [1876.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court 
in  the  third  judicial  department,  affirming  an  order  of  Special 

1  See  Hoffman  v.  Circuit  Judge,  The  arrest  of  a  party  attending  a 
113  Mich.  109;  Greenleaf  v.  Bank,  trial  is  not  an  actionable  trespass, 
133  N.   C.   292.  but  a  ground  for  discharge,  Came- 

2  The  sheriff  was  held  not  liable  ron  v.  Lightfoot,  2  W.  Blackstone, 
for  a  failure  to  arrest  a  bankrupt  1190. 

voluntarily  attending  a  sitting  of 
the  Commissioners.  Arding  v. 
Flower,  8  Term  Eep.  534  (1800). 


Sec.  2.]  person  v.  grier.  67 

Term,  setting  aside  a  service  of  the  summons  upon  defendant 
Grier.     (Reported  below,  6  Hun.  477.) 

Said  defendant  was  the  only  one  served.  He  is  a  resident  of 
Pennsylvania,  and  was  served  while  in  attendance  at  a  circuit 
in  Chemung  county  as  a  witness  in  an  action  in  the  Supreme 
Court  wherein  the  plaintiff  herein  was  a  defendant. 

J.  McGuire  for  the  appellant.  Defendants  were  not  exempted 
by  any  statute  from  the  service  of  civil  process  unaccompanied 
by  an  arrest  while  attending  court  as  a  witness,  or  in  going  to 
or  returning  from  such  court.  (Pollard's  Case,  7  Abb.  (N. 
S.)  71). 

Allen,  J.  It  is  the  policy  of  the  law  to  protect  suitors  and 
witnesses  from  arrests  upon  civil  process  while  coming  to  and 
attending  the  court  and  while  returning  home.  Upon  principle 
as  well  as  upon  authority  their  immunity  from  the  service  of 
process  for  the  commencement  of  civil  actions  against  them  is 
absolute  eundo,  morando  et  redeundo.  This  rule  is  especially 
applicable  in  all  its  force  to  suitors  and  witnesses  from  foreign 
states,  attending  upon  the  courts  of  this  state.  In  some  instances 
witnesses  and  suitors,  residents  of  the  state,  have  only  been  dis- 
charged from  arrest  upon  filing  common  bail ;  but  the  service  of 
process  upon  non-resident  witnesses  and  suitors  has  been  abso- 
lutely set  aside,  thus  giving  color  to  a  distinction  between  the 
two  classes  in  respect  to  their  immunity.  "Whether  any  distinc- 
tion should  or  does  in  fact  exist,  is  at  least  doubtful.  This  im- 
munity is  one  of  the  necessities  of  the  administration  of  justice, 
and  courts  would  often  be  embarrassed  if  suitors  or  witnesses, 
while  attending  court,  could  be  molested  with  process.  Wit- 
nesses might  be  deterred,  and  parties  prevented  from  attending, 
and  delays  might  ensue  or  injustice  be  done.  In  Norris  v.  Beach 
(2  J.  R.  294)  the  defendant,  a  resident  of  the  State  of  Connec- 
ticut, attending  in  this  state  to  prove  a  will,  was  held  exempt 
from  the  service  of  a  capias  and  discharged  absolutely  from  the 
arrest.  The  like  relief  was  granted  in  Sanford  v.  Chase  (3  Cow. 
381),  and  the  defendant,  a  resident  of  Massachusetts,  arrested 
upon  civil  process  while  attending  as  a  witness  before  arbitrators, 
was  discharged  absolutely  without  filing  common  bail,  the  court 
saying:  "The  privilege  of  a  witness  should  be  absolute."  The 
court  in  Hopkins  v.  Coburn  (1  "Wend.  292)  expressly  affirm  the 
absolute  immunity  of  foreign  witnesses  attending  our  courts 
from  the  service  of  civil  process  for  the  commencement  of  an 


68  PROCESS.  [Chap.  I. 

action.  The  same  rule  was  held  in  Seaver  v.  Robinson  (3  Duer. 
622),  and  Merrill  v.  George  (23  How.  331),  and  the  service  of  a 
summons  upon  persons  attending  from  other  states  as  witnesses 
in  this  state  was  in  each  case  set  aside.  This  court,  in  Van  Lieuw 
V.  Johnson  (decided  in  March,  1871,  but  not  reported),  sub- 
stantially adjudged  that  a  summons  could  not  be  served  upon  a 
defendant,  a  non-resident  of  the  state,  while  attending  a  court 
in  this  state,  as  a  party.  Four  of  the  judges  taking  part  in  that 
decision  were  of  the  opinion  that  neither  a  party  nor  a  witness 
attending  a  court  in  this  state  from  a  foreign  state  could  be 
served  with  summons  for  the  commencement  of  an  action.  The 
order  denying  an  application  to  set  aside  the  summons  in  that 
case  was  affirmed  upon  the  ground  that  the  party  had  lost  his 
privilege  by  remaining  within  the  state  an  unreasonable  and 
unnecessary  time  after  the  close  of  the  trial  upon  which  he  had 
attended.  Church,  Ch.  J.,  and  Foloer,  J.,  dissented  from  this 
result,  being  of  the  opinion  that  the  privilege  had  not  been  lost. 
The  authorities,  as  well  as  the  principle  upon  which  the  privilege 
rests,  clearly  lead  to  an  affirmance  of  the  order.  The  defendant 
Grier  attended  in  this  state,  in  good  faith,  as  a  witness,  and  the 
summons  was  served  upon  him  w^hile  he  was  so  attending  and 
during  the  continuance  of  the  freedom  from  arrest.  The  courts 
will  not  take  jurisdiction  of  a  party  whose  rights  are  thus  in- 
vaded. It  Avould  be,  in  effect,  and  for  all  practical  purposes,  a 
withdrawal  of  the  shield  and  protection  which  the  law  uniformly 
gives  to  witnesses,  if  a  party  coming  from  a  foreign  state  could 
be  served  A\dth  process  and  an  action  commenced  against  him, 
the  judgment  in  which  would  conclude  him  in  all  jurisdictions 
and  could  be  enforced  by  action  everywhere. 
The  order  must  be  affirmed.^ 

1  Same  rule  was  applied  to  a  non-  takinor  of  depositions  in  a  case  pend- 

resident  party  attending  the  taking  ing   in   the   court   of   another   state, 

of  depositions  in  a  case  pending  in  See  also  Christians  v.  Williams,  111 

a   Federal   Court   in    another    state,  Mo.  429,  in  which  the  privilege  was 

Parker   v.    Marco,    136    N.    Y.    585;  denied    a   resident    party    attending 

but  see  Grier  v.  Young,  120  111.  184,  court    in    another    county,    but    ap- 

denying  the  pri%'ilege  where  a  non-  parently  recognizing  a  different  rule 

resident    party    was    attending    the  in  case  of  a  non-resident. 


Sec.  2.]  bishop  v.  vose.  69 

BISHOP  V.  VOSE. 

27  Connecticut,  1.     [1858.] 

This  was  an  action  of  assumpsit,  brought  by  the  plaintiffs, 
partners  under  the  name  of  Bishop  &  Co.,  against  Francis  Vose 
and  Charles  L.  Perkins  of  the  city  and  state  of  New  York,  and 
John  B.  Kettell,  of  Boston,  in  the  state  of  Massachusetts,  late 
partners  under  the  name  of  Vose,  Perkins  &  Co.  The  writ  was 
served  as  a  summons  on  Vose,  in  the  city  of  Bridgeport  in  this 
state  on  the  24th  day  of  January,  1857,  and  no  other  service  was 
made  in  the  case. 

At  the  first  term  of  the  court  Vose  filed  a  written  motion  that 
the  cause  be  stricken  from  the  docket,  on  the  ground  that  all  the 
defendants  were  inhabitants  and  residents  of  other  states,  and 
that  no  service  of  the  writ  was  made  except  upon  him  personally 
in  the  manner  stated,  and  that  at  the  time  of  such  service  he  was 
necessarily  attending  court  at  said  Bridgeport  as  a  party  and 
witness  in  a  case  there  on  trial.  The  court  on  the  motion  found 
that  Vose  came  into  the  state  to  attend  the  trial  of  a  suit  then 
pending  in  the  Superior  Court  for  the  county  of  Fairfield,  at  the 
December  term,  1856,  in  which  he  and  the  other  defendants  in 
the  present  case  were  plaintiffs,  and  the  present  plaintiffs  were 
defendants ;  that  he  attended  as  such  plaintiff,  and  to  testify  as 
a  witness  therein ;  that  he  remained  in  attendance  in  court  after 
the  testimony  was  closed  on  the  afternoon  of  the  23d  day  of 
January,  1857,  and  during  the  argument  which  then  commenced 
and  was  concluded  by  the  plaintiff's  counsel  on  the  afternoon  of 
the  24th  day  of  said  January,  and  until  after  the  cause  was 
committed  to  the  jury  by  the  judge ;  and  was  intending  to  leave, 
and  did  in  fact  leave  in  the  first  practicable  conveyance  there- 
after, viz. :  in  the  train  which  left  Bridgeport  for  New  York  on 
the  evening  of  the  24th  of  January,  1857 ;  and  that  the  process 
in  this  suit  was  served  upon  him  on  the  24th  day  of  January, 
after  the  termination  of  the  trial.  The  suit  was  brought  upon  a 
contract  executed  in  the  state  of  New  York. 

The  questions  of  law  arising  upon  the  motion  and  on  the  facts 
found  thereon  were  re.served  for  the  advice  of  this  court. 

Ellsworth,  j.  *  *  *  Another  question  is  made  of  a  dif- 
ferent and  novel  character,  but  which  is  easily  disposed  of.  Was 
Mr.  Vose  privileged  from  being  served  with  a  summons  because 


70  PROCESS.  [Chap.  I. 

he  came  here  to  attend  the  trial  of  a  case  which  he  caused  to  be 
brought  in  one  of  our  courts?  We  think  he  was  not.  Had  he 
been  an  inhabitant  of  Connecticut,  his  attendance  in  court  would 
have  given  him  no  such  immunity.  Why  should  it  any  more 
because  he  comes  here  from  another  state?  This  would  seem  to 
be  an  additional  reason  why  our  citizens  should  be  allowed  to 
sue  him  here  and  bring  him  to  trial  within  our  own  jurisdiction. 
At  any  rate  he  can  not  be  placed  on  any  better  ground  than  our 
own  citizens.  In  King  v.  Coit,  4  Day,  130,  our  court  decided 
that  while  the  defendant  was  attending  the  General  Assembly  he 
was  not  subject  to  a  suit  by  any  form  of  service  whatever,  not 
even  to  a  writ  of  error,  which  is  nothing  but  a  summons,  but  the 
decision  was  placed  on  the  peculiar  language  of  the  statute, 
which  declares  that  a  member  of  the  assembly  shall  not  be  ar- 
rested, sued  or  imprisoned  or  anywise  molested  or  troubled,  or 
compelled  to  answer  to  any  suit,  bill,  plaint,  declaration  or  other- 
wise, before  any  other  court,  judge,  or  justice,  cases  of  high 
treason  and  felony  excepted ;  and  even  in  this  case  Judge  Reeve, 
in  a  dissenting  opinion,  held  that  this  statute  ought  not  to  be  so 
construed  as  to  render  void  and  inoperative  the  service  of  a  writ 
by  leaving  a  copy  or  by  a  mere  summons.  He  held  that  the 
statute  introduced  no  new  rule  of  law ;  for  it  was  conceded  on 
all  hands  that  at  common  law,  although  an  arrest  would  be  void 
and  the  person  set  at  large  on  motion,  the  suit  would  not  abate, 
and  that  was  all  that  was  intended  by  the  statute.  And  we  sup- 
pose there  can  be  no  doubt  that  in  all  such  cases  of  parties  or 
witnesses,  they  can  not  be  arrested  or  detained,  and  will  be  dis- 
charged at  once  on  motion  to  the  court,  because  the  court  needs 
their  attendance  and  assistance  to  enable  it  to  discharge  its  duties 
to  the  parties  and  the  public ;  but  a  mere  summons  works  no 
prejudice  to  the  court  or  the  parties,  and  the  action  goes  into 
court  to  take  its  trial  at  some  proper  and  convenient  time.  Gen- 
erally, if  not  universally,  at  the  common  law,  parties  and  wit- 
nesses are  liable  to  be  sued,  though  their  bodies  can  not  be  at- 
tached or  detained,  and  hence  all  the  books  speak  of  their  being 
entitled  to  their  liberty,  but  nothing  more,  and  the  suit  never 
abates  for  any  such  cause.  1  Phill.  on  Ev.  5,  6 ;  1  Sw.  Dig.  497 ; 
King  V.  Coit,  supra.  Numerous  other  cases  are  cited  in  1  U.  S. 
Dig.,  p.  236  et  seq. 

It  is  said  again  to  be  unjust  and  to  involve  a  want  of  comity 
to  foreigners  when  they  come  here  of  necessity  to  sue  our  eiti- 


Sec.  2.]  bishop  v.  vose.  tl 

zens,  who  can  not  be  found  elsewhere  and  have  no  property  else- 
where, to  allow  them  to  be  sued  and  compelled  to  submit  their 
causes  to  our  courts  of  justice.  But  why  is  this  unjust  or  un- 
courteous?  We  confess  we  do  not  see  it.  From  the  first  it  has 
been  the  law,  both  common  law  and  statute  law,  that  a  foreign 
citizen,  if  found  here,  whether  here  on  business  or  pleasure  or 
hastening  through  the  state  with  railroad  speed,  is  liable  to  be 
sued  like  any  other  person  and  is  not  entitled  to  any  personal 
or  peculiar  immunity.  And  we  are  at  a  loss  to  discover  why  our 
citizens  should  be  obliged  to  go  into  a  foreign  jurisdiction  in 
pursuit  of  their  debtors,  when  those  debtors  are  here  and  can  be 
sued  here  and  can  receive  here  that  consideration  which  is  meted 
out  to  all  indiscriminately.  The  very  difficulties  which  are  urged 
here  by  the  defendant  may,  for  aught  we  know,  be  urged  in 
greater  force  in  any  other  state  or  country. 

It  is  said  that  at  all  events,  however  the.  law  may  be  as  to  a 
party,  a  witness  from  abroad  stands  on  a  different  ground,  and 
that  he  certainly  ought  not  to  be  liable  to  be  sued  here  while  in 
attendance  on  our  courts  as  a  witness.  Perhaps  this  is  so.  We 
are  not  prepared  to  say  that  it  is  not,  since  a  witness  may  be 
said  not  voluntarily  to  put  himself  under  our  jurisdiction  like  a 
party.  Distinguished  judges  have  thought  there  was  a  difference 
and  a  material  difference  in  this  respect,  that  foreign  witnesses 
ought  to  be  encouraged  to  come  and  testify  in  person,  and  there- 
fore should  be  protected  from  all  jurisdictional  process  of  a  civil 
nature,  while  this  is  not  necessary  as  to  parties,  who  are  not  here 
except  from  pure  choice,  whether  they  be  plaintiff's  or  defend- 
ants. We  believe  that  such  is  the  law  of  New  York  and  perhaps 
is  held  elsewhere.  Norris  v.  Beach,  2  Johns.  294 ;  Bours  v.  Tuck- 
erman,  7  id.  538 ;  Sanford  v.  Chase,  3  Cow.  381 ;  Seaver  v.  Rob- 
inson, 3  Duer,  622 ;  1  Greenl.  Ev.,  sec.  316 ;  Lightfoot  v.  Cameron, 
2  W.  Bla.  1113. 

However  this  may  be,  we  know  of  no  decisions  that  carry  the 
exception  beyond  the  case  of  a  witness,  and  there  is  no  principle 
of  comity  or  public  policy  to  be  derived  from  them  which  will 
sustain  the  doctrine  claimed  by  the  defendants.  We  advi.se  judg- 
ment for  the  plaintiffs. 

In  this  opinion  the  other  judges  concurred.^ 

iSemble,  accord,  Baisley  v.  Bais-  120  111.  184;  Mullen  v.  Sanborn,  25 
ley,  113  Mo.  544;   Grier  v.  Young,       L.     E.     A.     721,     note.       Contra, 


72  PROCESS.  [Chap.  I. 

HARE  V.  HYDE. 

16  Queen's  Bench  (X.  S.),  394.     [1851.] 

Pashley,  in  the  present  term,  obtained  a  rule  nisi  to  discharge 
the  defendant  in  this  cause  from  custody.  It  appeared  that  the 
defendant  was  indicted  and  tried  for  embezzlement  at  the  West 
Riding  Quarter  Sessions.  He  was  acquitted  and  ordered  to  be 
discharged.  Immediately  afterwards  he  was  arrested  on  a  ca.  sa. 
at  the  suit  of  the  plaintiff  in  this  cause.  It  did  not  distinctly 
appear  on  the  affidavits  whether  he  had  actually  left  the  dock  or 
not ;  but  it  was  clear  that  he  had  been  discharged  by  the  Quarter 
Sessions  and  arrested  in  court  immediately  afterwards,  and 
whilst  the  Quarter  Sessions  were  still  sitting. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  the  defendant 
had  no  privilege  in  respect  of  his  having  been  tried  and  acquitted 
and  ordered  to  be  discharged.  He  was  after  that  in  the  same 
position  as  any  other  of  the  circumstantes  in  court.  The  cases 
show  that  an  acquitted  prisoner  has  no  privilege  redeundo;  and 
it  follows  that,  whilst  remaining  as  a  spectator,  he  has  no  privi- 
lege more  than  any  one  else. 

The  question  then  comes  to  be,  whether  any  person  arrested 
on  civil  process  in  a  court  of  justice  is  entitled  to  be  discharged. 
I  do  not  think  he  is.  It  is  not  a  proper  course  to  execute  an 
arrest  in  such  a  place ;  and  I  do  not  say  that  the  court  in  some 
cases  may  not  discharge  the  person  so  arrested,  but  no  such  case 
is  made  here.  We  are  not  asked  to  vindicate  the  dignity  of  the 
Court  of  Quarter  Sessions,  but  applied  to  by  the  defendant,  who 
is  in  custody. 

Patteson,  J.  This  is  the  defendant 's  rule.  He  has  no  privi- 
lege, and  has  been  arrested,  so  far  as  he  is  concerned,  rightly; 
though  it  may  be  that  the  arrest  was  a  contempt  of  the  Court  of 
Quarter  Sessions. 

Coleridge,  J.,  and  Wightman,  J.,  concurred. 

Rule  discJiarged.^ 

Mathews  v.  Tufts,  87  N.  Y.  568.    In  27  Yt.  762,  where  process  was  served 

Chittenden  v.  Carter,  82  Conn.  585,  while  the  defendant  was  in  custody 

the  privilege  was  sustained  in  case  on  a  criminal  charge.    But  this  rule 

of    a    non-resident    witness,    distin-  will  not  protect  an  abuse  of  erimi- 

guishing  Bishop  v.  Yose.  nal   process.      See  Hurlburt  v.   Pal- 

1  Same  result  in   Scott  v.   Curtis,  nier,  39  Neb.  158   (defendant  taken 


N 


Sec.  2.]  moletor  v.  sinnen.  73 

MOLETOR  V.  SINNEN. 

76  Wisconsin,  308.     [1890.] 

Appeal  from  the  Circuit  Court  for  Sheboygan  County.  Action 
for  a  breach  of  promise  to  marry.  The  plaintiff  appeals  from  an 
order  setting  aside  the  service  of  the  summons  and  complaint, 
and  vacating  an  order  of  arrest.  The  facts  will  sufficiently  ap- 
pear from  the  opinion. 

Cole,  C.  J.  Did  the  Circuit  Court  properly  set  aside  the 
service  of  the  summons  and  complaint  in  this  action  and  vacate 
the  order  of  arrest  therein?  The  defendant  was  brought  into 
this  state  upon  a  requisition  upon  the  governor  of  Illinois,  hav- 
ing been  charged  with  the  crime  of  seducing  the  plaintiff  under 
a  promise  of  marriage,  and  alleging  that  he  was  a  fugitive  from 
justice.  Upon  an  examination  before  a  magistrate  he  was  bound 
over  for  trial.  At  the  April  term  of  the  Circuit  Court  of  She- 
boygan county,  1889,  an  information  was  filed  in  that  court 
charging  the  defendant  with  having  committed  the  crime  of  se- 
duction. At  the  October  term  of  that  court  the  defendant  was 
duly  arraigned,  and  a  plea  in  abatement  was  interposed,  setting 
up  the  statute  of  limitations  as  a  defense  to  the  action.  This 
plea  was  sustained  by  the  court  and  the  defendant  was  dis- 
charged from  custody.  Within  ten  minutes  after  his  discharge 
and  before  he  had  departed  from  the  courtroom  the  deputy 
sheriff  made  service  of  summons  and  complaint  and  order  of 
arrest  upon  him,  at  the  suit  of  the  plaintiff  for  a  breach  of 
promise. 

It  appears  that  the  defendant,  at  the  time  of  the  alleged  se- 
duction, was  a  resident  of  Sheboygan  county.  He  left  the  state 
in  January,  1888,  and  remained  outside  the  state,  except  that  he 
returned  in  the  night-time  in  the  same  month  and  transacted 
some  business,  and  immediately  left.  He  was  brought  back  on 
a  requisition  as  a  defendant  in  a  criminal  action,  and  as  a  fugi- 
tive from  justice.  It  is  said  by  the  counsel  for  appellant  that 
the  affidavit  of  the  defendant  upon  which  the  order  of  the  court 

into  another  county  in  order  that  criminal  charge) ;  McNab  v.  Ben- 
he  might  be  served)  ;  Byle  v.  Jones,  nett,  66  111.  157  (same)  ;  Willard  v. 
79  Mo.  261  (defendant  arrested  and  Zehr,  215  111.  148  (fraudulent  ex- 
brought    into    county    on    tictitious  tradition). 


74  PROCESS.  [Chap.  I. 

setting  aside  the  service  and  order  of  arrest  is  based  is  insuffi- 
cient, because  it  fails  to  show  any  fraud  or  abuse  of  the  process 
of  the  court  by  the  appellant,  or  by  any  person  acting  for  her, 
in  the  procurement  of  the  return  of  the  defendant  on  the  crim- 
inal prosecution,  nor  does  it  show  that  the  defendant  was,  at  the 
time  he  so  returned  on  the  requisition,  a  bona  fide  citizen  of  Illi- 
nois. But  it  appears  from  the  affidavit  of  the  plaintiff  which 
was  used  to  obtain  the  order  of  arrest  that  the  defendant  was 
not  a  resident  of  this  state,  but  resided  in  the  city  of  Chicago, 
and  that  he  was  about  to  return  to  that  state;  and,  while  the 
promise  of  marriage  was  made  and  the  alleged  seduction  was 
accomplished,  in  1887,  it  does  not  appear  that  the  plaintiff  had 
anything  to  do  in  procuring  the  defendant 's  return  on  the  requi- 
sition of  the  governor,  nor  does  it  appear  that  there  was  any 
fraud  used  on  the  part  of  any  one  to  get  the  defendant  within 
the  state.  In  that  respect  the  case  is  distinguishable  from  Town- 
send  V.  Smith,  47  Wis.  623,  and  cases  where  jurisdiction  is  ob- 
tained by  fraudulent  means. 

It  is  assumed,  in  this  case,  as  a  fact,  that  the  defendant  had 
committed  the  crime  of  seduction,  as  alleged,  and  had  withdrawn 
himself  from  the  state  to  avoid  a  prosecution  therefor,  so  as  to 
be  a  fugitive  from  justice  in  a  legal  sense.  Still,  having  been 
forcibly  brought  to  the  state  on  a  requisition,  and  the  court  hav- 
ing exhausted  its  jurisdiction  over  him  in  respect  to  the  crime 
with  which  he  was  charged,  could  he  properly  be  arrested  in  a 
civil  action  until  a  reasonable  time  and  opportunity  had  been 
given  him,  after  his  discharge,  to  return  to  the  state  from  which 
he  had  been  forcibly  taken  ?  This  is  the  question  involved  in  the 
appeal;  and  we  think  sound  principle  requires  that,  where  a 
person  has  been  brought  within  the  jurisdiction  of  a  court  upon 
a  requisition  as  a  fugitive  from  justice,  and  has  been  tried  for, 
or  discharged  as  to,  the  offense  charged  against  him,  he  ought 
not  to  be  subject  to  arrest  on  a  civil  process  until  a  reasonable 
time  and  opportunity  has  been  given  him  to  return  to  the  state 
from  which  he  was  taken.  In  the  courts  of  the  United  States 
the  weight  of  judicial  opinion  is  in  favor  of  the  proposition  that, 
where  a  party  in  good  faith  is  brought  within  the  jurisdiction 
of  a  state,  or  detained  therein,  being  a  nonresident,  either  as  a 
party  to  a  suit  or  as  a  witness  in  another  suit,  he  is  not  subject 
to  service.  Small  v.  Montgomery,  23  Fed.  Rep.  707  ;  Junea  Bank 
V.  McSpedan,  5  Biss.  64 ;  U.  S.  v.  Bridgman,  9  Biss.  221 ;  Blair 


Sec.  2.]  moletor  v.  sinnen.  75 

V.  Turtle,  1  McCraiy,  372,  5  Fed.  Rep.  394 ;  Atehinson  v.  Morris, 
11  Fed.  Rep.  582.  Many  of  the  state  courts  hold  the  same  rule. 
Compton  V.  Wilder,  40  Ohio  St.  130;  People  ex  rel.  Watson  v. 
Judge,  40  Mich.  730;  Cannon's  Case,  47  Mich.  482;  Baldwin  v. 
Branch  Circuit  Judge,  48  Mich.  525;  Jacobson  v.  Hosmer,  76 
Mich.  234 ;  Sherman  v.  Gundlach,  37  Minn.  118 ;  Chubbuck  v. 
Cleveland,  37  Minn.  466 ;  Palmer  v.  Rowan,  21  Neb.  452 ;  Wanzer 
V.  Bright,  52  111.  35 ;  Williams  v.  Reed,  29  N.  J.  Law,  385 ;  Hill 
V.  Goodrich,  32  Conn.  588.  The  last  three  cases  go  upon  the 
same  ground  as  Townsend  v.  Smith,  47  Wis.  623. 

The  reason  for  the  rule  that  a  person  is  exempt  from  arrest 
under  the  circumstances  disclosed  in  this  case  is  that  sound  pub- 
lic policy  requires  that  a  person  shall  be  privileged  from  arrest 
while  going  to  or  from  court  in  all  judicial  proceedings.  The 
privilege  should  exist  to  subserve  great  public  interests  and  the 
due  administration  of  justice.  Moreover,  as  was  said  by  Camp- 
bell, J.,  in  Cannon's  Case,  47  Mich.  482,  "it  is  very  well  known 
that  the  perversion  of  extradition  proceedings  has  on  more  than 
one  occasion  led  to  difficulties  between  nations,  and  to  refusals 
by  state  executives  to  deliver  up  persons  charged  with  crime 
whose  arrest  was  supposed  to  be  desired  for  sinister  purposes." 
The  temptation  is  certainly  strong  to  make  such  requisitions  sub- 
servient to  private  interests;  and  they  are  often  resorted  to  to 
enforce  a  collection  of  private  debts,  or  to  remove  a  citizen  from 
his  home  into  a  foreign  jurisdiction  in  order  to  get  service  on 
him  in  a  civil  action.  For  the  most  cogent  reasons,  therefore, 
we  think  courts  of  justice  are  bound  to  see  that  no  improper  use 
be  made  of  such  proceedings,  which  would  look  like  a  violation 
of  good  faith  and  a  perversion  of  measures  which  had  to  be  re- 
sorted to  in  order  to  bring  the  party  accused  within  their  juris- 
diction. 

We  do  not  deem  it  necessary  to  comment  in  detail  upon  all  the 
cases  cited.  We  will  observe,  however,  that  in  cases  of  extradi- 
tion by  a  foreign  government  under  a  treaty,  the  Supreme  Court 
of  the  United  States  holds  that  a  person  who  has  been  brought 
within  the  jurisdiction  of  a  court  by  virtue  of  proceedings  under 
an  extradition  treaty  could  only  be  tried  for  one  of  the  offenses 
described  in  said  treaty  and  for  the  offense  with  which  he  is 
charged  in  the  proceedings  for  his  extradition,  until  a  reasonable 
time  and  opportunity  had  been  given  him,  after  his  release  or 
trial  upon  such  charge,  to  return  to  the  country  from  whose 


76 


PROCESS. 


Chap.  I. 


asylum  he   had  been  forcibly  taken   under  those  proceedings. 
U.  S.  V.  Rauscher,  119  U.  S.  407. 

A  distinction  is  made  in  some  of  the  authorities  between  civil 
and  criminal  cases.  In  criminal  eases  some  courts  hold  that  even 
a  forcible  seizure  in  another  country,  and  the  transfer  by  vio- 
lence or  fraud  to  this  country  is  no  .sufficient  reason  why  the 
party  should  not  answer  when  brought  within  the  jurisdiction 
of  a  court  which  has  the  right  to  try  him  for  such  an  oifense. 
See  Ker  v.  Illinois,  119  U.  S.  436 ;  Mahon  v.  Justice,  127  U.  S. 
700.  The  offense  having  been  committed  in  the  state  to  which 
the  party  is  brought,  he  may  be  there  tried  for  it ;  and  neither 
comity  to  a  sister  state,  nor  any  just  appreciation  of  the  rights  of 
a  citizen  entitle  him  to  be  released.  He  may  be  held  to  answer 
for  the  crime  he  has  committed.  This  question  is  fully  consid- 
ered in  State  ex  rel.  Brown  v.  Stewart,  60  Wis.  587.  But  it  is 
obvious  there  is  no  fair  analogy  between  civil  and  criminal  cases 
in  this  respect,  and  a  different  rule  applies.^ 

It  follows  from  these  views  that  the  order  of  the  Circuit  Court 
must  be  affirmed. 

By  the  court. 

Order  Affirmed. 


1  And  so  in  Compton  v.  Wilder, 
40  Ohio  St.  130  (same  state  of 
facts).  Privilege  also  recognized  in 
ease  of  a  non-resident  held  to  bail 
on  a  criminal  charge,  Kaufman  v. 
Garner,  173  ,Fed.  550;  Martin  v. 
Bacon,  76  Ark.  158,  6  Am.  &  Eng. 
Annotated  Cases,  336. 

Contra :  Netograph  Manufactur- 
ing Co.  V.  Serugham,  197  N.  Y.  377, 
27  L.  E.  A.  (N.  S.)  333,  in  which 
Werner,  J.,  said :  ' '  The  privilege 
should,  therefore,  not  be  extended 
beyond  the  reason  of  the  rule  upon 
which  it  is  founded.  Since^  the  ob- 
vious reason  of  the  rule  is  to  encour- 
age voluntary  attendance  upon 
courts  and  to  expedite  the  adminis- 
tration of  justice,  that  reason  fails 
when  a  suitor  or  witness  is  brought 
into  the  jurisdiction  of  a  court  while 
under  arrest  or  other  compulsion  of 
law.     Such  a  suitor  or  witness  does 


nothing  to  encourage  or  promote  vol 
untary  submission  to  judicial  pro- 
ceedings. He  comes  because  he  can- 
not do  otherwise.  That  seems  to 
be  the  basis  for  the  exception  to  the 
general  rule  of  privilege  which  is 
illustrated  in  cases  where  persons 
are  brought  into  the  jurisdiction  of 
a  court  under  extradition  from  other 
states  or  foreign  countries.  (Wil- 
liams V.  Bacon,  10  Wend.  636; 
Slade  V.  Joseph,  5  Daly,  187;  Adri- 
auce  V.  Lagrave,  59  N.  Y.  110;  Peo- 
ple ex  rel.  Post  v.  Cross,  135  N.  Y. 
536.)  The  privilege  is  held  not  to 
exist  in  such  cases.  From  time  im- 
memorial it  has  been  the  law  that 
persons  actually  in  custody  under 
criminal  process  are  not  exempt 
from  service  of  process  in  civil  suits. 
(1  Chitty's  Cr.  L.  661;  Foster  Cr. 
L.  61,  62;  Tidd's  Pr.  306;  2  Archb. 
Pr.  122.) 


Sec.  2.  ]  stein  v.  valkenhuysen.  77 

STEIN  V.  VALKENHUYSEN. 

Ellis,  Blackburn  &  Ellis,  65.     [1858.] 

WiGHTMAN,  J.  In  this  case  it  appears  that  the  defendant, 
being  indebted  to  the  plaintiffs  on  a  cause  of  action  which  ac- 
crued abroad,  was  induced  by  a  Mr.  Smith  to  believe  that  he 
would  have  benefit  from  a  personal  interview  with  some  party 
in  England,  and  to  come  here  in  consequence,  and  that,  on  his 
doing  so,  he  was  immediately  arrested.  The  first  question  is  one 
of  fact :  Was  he  induced  to  come  by  a  fraud  to  which  the  plain- 
tiffs were  privy  ?  Now,  on  these  affidavits,  I  entertain  no  doubt 
whatever  that  all  the  representations  of  Smith  were  mere  fictions, 
made  solely  for  the  purpose  of  inducing  the  defendant  to  come 
to  England  that  he  might  be  arrested,  and  that  the  plaintiffs 
were  parties  to  this  delusion  which  produced  the  desired  effect 
of  bringing  the  defendant  here,  where  he  never  would  have  come 
had  he  known  the  truth.  Then,  having  no  dou^t  at  all  that  the 
defendant  was  lured  to  this  country  by  the  fraud  of  the  plain- 
tiffs, the  next  question  arises,  and  it  seems  to  be  that  the  plain- 
tiffs are  disabled  from  taking  advantage  of  their  own  fraud.  It 
is  much  as  if  the  plaintiffs  had  given  the  defendant  an  express 
undertaking  that  he  should  not  be  arrested  whilst  in  England. 
I  cannot  doubt  that,  by  giving  such  an  undertaking,  the  plain- 
tiffs would  disqualify  themselves  from  procuring  an  arrest. 
Bringing  the  defendant  here  by  fraud  has  at  least  as  much  effect 
as  if  there  were  an  express  promise.  In  Hitchcock  v.  Hunter 
(5  Jurist,  770)  this  court,  after  consideration,  thought  the  stat- 
ute not  imperative.  If  we  have  a  discretion  (and  I  do  not  doubt 
the  authority  of  that  case),  this  is  a  case  for  the  exercise  of  it. 
But  I  proceed  on  the  ground  that  a  party  cannot  avail  himself 
of  his  own  fraud. 

H.  Hawkins  in(|uired  Avhothor  the  rule  was  to  be  absolute  to 
set  aside  the  service  of  the  writ  as  well  as  the  order. 

Per  Curiam.    The  whole  was  an  abuse  of  the  process.    It  must 
all  be  set  aside. 

Bule  absolute  accordingly} 
I 

1  Accord:     Wanzer  v.   Bright,   .'32       fraud,  see  Jaster  v.  Carrie,  198  U. 
111.    35.      As    to    what    constitutes       S.  144. 


78  PROCESS.  [Chap.  I. 

(c)   Waiver  of  Process  or  Service. 

REX  V.  HARE  AND  MANN. 

1  Strange,  145.     [1719.] 

Scire  facias  out  of  the  petty  bag  to  repeal  letters  patents,  re- 
turnable coram  nobis  in  Cancellaria  nostra  in  octahis  purifica- 
tionis  heatae  Blariae  virginis  uhicunque  tunc  fuerit.  The  de- 
fendants, salvis,  etc.,  pray  oyer  of  the  writ,  and  then  plead  in 
abatement,  that  the  writ  ought  to  have  been  returnable  cora/m 
domino  rege  in  Cancellaria  sua  uhicitnque  eadem  Cancellaria 
tunc  foret  in  Anglia,  and  not  generally  uhicunque  tunc  foret. 
To  this  the  attorney  general  demurs. 

YoRKE  (counsel  for  defendants).  In  order  to  avoid  the  force 
of  this  argument  in  the  present  case,  some  objections  have  been 
made  of  the  other  side. 

The  first  is  that  our  exception  comes  too  late,  for  that  it  is 
now  aided  by  the  appearance  of  the  defendant.  And  this  was 
enforced  by  observing,  that  it  was  absurd  to  say  this  defendant 
had  an  hardship  put  upon  him  by  being  summoned  to  appear  in 
Scotland,  when  the  court  was  at  Westminster  at  the  return,  and 
he  has  appeared  here. 

The  answer  to  this  is  that  it  is  not  helped  by  appearance,  be- 
cause the  defendant  has  come  in  specially,  saving  to  himself  all 
advantages  whatsoever,  and  has  challenged  this  defect  by  plea. 

I  may  agree,  without  prejudice  to  this  question,  that  possibly 
if  the  defendant  had  come  in  and  not  replied  upon  this  excep- 
tion, but  pleaded  over  some  matter  of  bar,  that  might  have  pre- 
cluded him  from  taking  this  advantage  afterwards.  But  when 
he  expressly  comes  in  for  this  special  purpose,  I  apprehend  he 
may  insist  upon  it. 

I  do  admit  that  any  error  in  mesne  process  is  salved  by  the 
party's  appearance,  and  he  shall  not  afterwards  take  advantage 
of  it,  because  the  only  intent  of  mesne  process  is  to  bring  the 
defendant  into  court,  and  when  he  is  come  in,  that  is  out  of  the 
case,  for  he  might  have  come  in  upon  the  writ  without  it.  But 
an  original  writ  (as  a  scire  facias  to  repeal  letters  patents  was 
determined  to  be  in  the  case  of  The  King  v.  Eyre)  is  of  another 
nature,  for  that  is  not  only  to  bring  in  the  party,  but  also  to 
found  the  jurisdiction  of  the  court  in  that  particular  cause,  and 


Sec.  2.]  westall  v.  finch.  79 

to  be  the  ground  work  of  all  the  proceedings  of  the  court  after- 
wards. And  I  know  no  case  in  the  law  where  it  has  been  held 
that  an  appearance  has  cured  any  error  in  the  original  writ.^ 


WESTALL  V.  FINCH. 

Barne's  Notes,  406.     [1735.] 

Defendant  moved  to  stay  the  proceedings,  the  process  not 
having  been  served  upon  him,  but  upon  another  person,  and 
obtained  a  rule  to  show  cause.  Upon  showing  cause,  it  was  in- 
sisted by  plaintiff  that  although  the  process  might  be  served 
upon  a  wrong  person,  yet  an  appearance  being  now  entered,  the 
defendant  was  in  court,  and  the  mistake  was  cured.  But  per 
Cur.:  The  appearance  is  entered  by  plaintiff  according  to  the 
statute,!  and  by  no  means  cures  the  mistake.  Let  the  rule  be 
absolute.    Hawkins,  for  defendant ;  Wright,  for  plaintiff. 


HAWKINS  V.  TAYLOR. 

56  Arhmisas,  45.     [1892.] 

Taylor  was  plaintiff  in  a  judgment  in  the  Circuit  Court  of 
Franklin  county  against  P.  R.  Cravens  &  Co.,  upon  which  execu- 
tion was  issued  on  February  26,  1890,  and  on  same  day  placed  in 
the  hands  of  J.  D.  Hawkins,  sheriff  of  Crawford  county.  On  the 
26th  day  of  April,  1890,  he,  as  such  sheriff,  endorsed  the  execu- 
tion, "no  property  found,"  and  on  April  28,  1890,  mailed  the 
execution  with  his  return  endorsed  thereon  to  the  circuit  clerk 
of  Franklin  county,  by  whom  it  was  received  on  the  same  day. 
On  May  12,  1890,  notice  was  served  on  Hawkins  of  a  motion  for 
summary  judgment  for  failure  to  return  the  execution  within 
sixty  days,  which  motion  was  filed  on  June  13,  1890.  Defendant 
moved  to  strike  the  motion  from  the  files ;  this  motion  was  over- 

1  The  court  held  that  the  writ  was  i  See  note  to  Collins  v.  Page,  post 

properly  framed.  174. 


80  PROCESS.  [Chap.  I. 

ruled.  Defendant  answered,  stating  (1)  that  the  execution  was 
returned  as  required  by  law;  (2)  that  the  judgment  upon  which 
the  execution  was  issued  was  void  and  the  execution  a  nullity. 
Upon  the  evidence  the  court  rendered  judgment  against  defend- 
ant for  the  amount  of  the  execution  and  interest,  with  ten  per 
cent  damages  thereon.    Defendant  has  appealed. 

CocKRiLL,  C.  J.  The  proceeding  was  instituted  by  motion  for 
summary  judgment  under  sections  3963-4,  and  it  is  argued  that 
the  plaintiff's  cause  should  fall  because  those  sections,  as  held 
above,  do  not  apply.  But  the  complaint  contain.s  all  the  allega- 
tions necessary  to  a  recovery  under  section  3061.  The  defendant 
demurred  to  it,  and,  after  the  demurrer  had  been  overruled  and 
the  cause  continued  to  another  term,  consented  to  an  order  set- 
ting aside  the  continuance,  filed  his  answer  and  went  to  trial. 
Either  of  these  acts  was  sufficient  to  enter  his  appearance  and 
waive  the  formal  issue  and  service  of  summon.s.  The  defendant 
was  therefore  in  court,  and  cannot  now  be  heard  to  object  that 
he  was  brought  in  by  notice  instead  of  summons.^ 


PLANO  MFG.  CO.  v.  RASEY. 

69  Wisconsiji,  246.     [1887.] 

Cole,  C.  J.  This  action  w^as  commenced  before  a  justice  of 
the  peace  of  Rock  county,  where,  after  trial,  a  judgment  w^as 
rendered  in  favor  of  the  appellant.  From  this  judgment  the 
respondent  took  an  appeal  to  the  Circuit  Court,  in  which  court 
he  recovered  the  judgment  from  which  this  appeal  is  taken.  It 
is  now  claimed  that  the  Circuit  Court  never  acquired  jurisdic- 
tion of  the  cause  and  had  no  power  to  render  the  judgment  it 
did ;  that  the  municipal  court  of  Rock  county  has  exclusive  juris- 
diction of  all  appeals  from  justices'  courts  of  that  county,  and 
that  the  appeal  of  the  respondent  in  the  first  instance  should 
have  been  to  that  court.  That  point  was  so  ruled  in  Taylor  v. 
De  Camp,  68  Wis.  162.  The  learned  counsel  for  the  respondent 
seeks  to  avoid  the  con.sequences  of  this  decision  by  insisting  that, 

1  See  also  Dennison  v.  Hyde,  6  :Mich.  332 ;  Walker  v.  King,  1  How. 
Conn.  508;    Cofrode  v.   Gartner,  79       (Miss.)    17. 


Sec.  2.]  plano  mfg.'  co.  v.  rasey.  81 

under  the  circumstances,  the  objection  to  the  jurisdiction  of  the 
Circuit  Court  must  be  deemed  waived  and  no  longer  available. 
He  says,  quite  truly,  that  the  Circuit  Court  would  have  had 
jurisdiction  of  the  action  if  it  had  been  commenced  in  that  court ; 
might  have  tried  it  and  rendered  judgment  therein;  and  upon 
the  record  he  says,  we  should  presume  that  the  parties  volun- 
tarily appeared  in  that  court,  submitted  themselves  to  its  juris- 
diction, and  are  bound  by  its  judgment. 

It  certainly  would  be  a  most  unwarranted  presumption  to 
sustain  that  view,  contrary  to  everything  appearing  in  the  rec- 
ord. For  we  find  in  the  record  papers  sent  to  the  Circuit  Court 
by  the  justice,  among  which  are  the  notice  of  appeal,  affidavit 
and  undertaking,  given  by  the  respondent  on  his  taking  his  ap- 
peal to  the  Circuit  Court,  all  of  which  we  are  asked  to  ignore  or 
treat  as  of  no  effect  whatever.  This  is  surely  a  summary  and 
novel  way  of  disposing  of  the  record  of  a  court — to  utterly  dis- 
regard it  or  shut  our  eyes  to  its  existence.  We  do  not  feel  at 
liberty  to  do  that  in  any  case.  We  must  therefore  assume  and 
hold,  according  to  the  real  fact,  that  this  case  was  attempted  to 
be  taken  by  appeal  from  the  justice  to  the  Circuit  Court.  ■  It  is 
elementary  law  that  the  Circuit  Court  acquires  jurisdiction  of 
appeals  from  the  justices'  courts  under  the  statute.  And  prob- 
ably a  hundred  cases  could  be  found  where  this  court  has  decided 
that  the  Circuit  Court  only  acquires  jurisdiction  of  an  appeal 
where  the  requirements  of  the  statute,  regulating  appeals,  are 
complied  with.  So  a  defective  affidavit,  or  notice  of  appeal,  or 
a  claim  before  the  justice,  exceeding  his  jurisdiction,  have  been 
held  fatal  to  the  jurisdiction  of  the  Circuit  Court.  We  shall  not 
attempt  to  cite  the  eases  upon  this  question  of  practice. 

What,  then,  results  from  the  fact  that  the  respondent  took  his 
appeal  from  the  justice  to  the  Circuit  Court,  which  under  the 
statute  had  no  jurisdiction  of  the  cau.se?  It  is  too  plain  for 
argument  that  the  judgment  cannot  stand,  and  must  be  reversed. 
It  may  come  with  bad  grace  for  the  appellant  to  object  to  the 
jurisdiction  of  the  Circuit  Court,  after  having  gone  into  that 
court  and  tried  the  cause  upon  the  merits.  But  still  it  has  tlie 
right  to  take  advantage  of  the  objection,  because  it  is  in  its  nature 
a  question  of  jurisdiction  of  the  subject-matter,  which  consent 
cannot  supply.  For  while  consent  gives  jurisdiction  of  the 
person,  it  never  confers  jurisdiction  of  the  subject-matter. 
In  Dykeman  v.  Budd,  3  Wis.  640,  the  parties  attempted  by 

H.  T.  P.— 6 


82  PROCESS.  [Chap.  I. 

consent  to  give  the  Circuit  Court  jurisdiction  of  a  cause  on  appeal 
where,  under  the  statute,  such  court  could  only  acquire  jurisdic- 
tion by  an  order  of  the  County  Court,  changing  the  venue.  The 
court  in  the  opinion  says:  "If  jurisdiction  could  be  acquired 
of  appeals  by  the  Circuit  Court  by  stipulation  of  parties,  consent 
would  open  a  clear  and  direct  path  from  the  justice  to  the  Circuit 
Court,  without  the  intervention  of  the  County  Court  at  all." 
See  the  note  to  this  case.  Also  Clark  v.  Bowers,  2  Wis.  123; 
Verbeck  v.  Verbeck,  6  Wis.  159 ;  Miles  v.  Chamberlain,  17  Wis. 
447;  Felt  v.  Felt,  19  Wis.  193;  Ohse  v.  Bruss,  45  Wis.  442; 
Palmer  v.  Peterson,  46  Wis.  402.  We  deem  it  unnecessary  to 
refer  to  cases  where  it  has  been  held  that  an  appearance  or 
consent  gives  jurisdiction  of  the  person;  those  cases  are  dis- 
tinguishable from  the  one  before  us.  The  real  proposition  here 
is,  did  the  Circuit  Court  acquire  jurisdiction  of  the  subject  matter 
on  the  appeal?  We  think  it  did  not,  though  that  court  would 
have  jurisdiction  of  a  claim  of  $160,  the  price  of  the  reaper,  if 
the  action  had  been  commenced  in  that  court. 

It  follows,  therefore,  from  these  views,  that  the  judgment  of 
the  Circuit  Court  must  be  reversed. 


ST.  LOUIS  RAILWAY  CO.  v.  McBRIDE. 
141  U.  S.  127.     [1890.] 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

This  was  an  action  commenced  by  the  filing  of  a  complaint  on 
September  19,  1890,  in  the  Circuit  Court  of  the  United  States 
for  the  Western  District  of  Arkansas.  The  defendants  in  error 
were  plaintiffs  below.  They  alleged  that  they  were  respectively 
the  widow  and  children  of  James  A.  McBride,  deceased,  and  his 
next  of  kin  and  heirs  at  law,  and  that  there  were  no  personal 
representatives  of  the  said  deceased.  They  further  alleged  that 
they  were  citizens  and  residents  of  the  Western  District  of 
Arkansas;  that  the  railway  defendant  was  a  corporation  and 
citizen  of  the  State  of  Missouri,  doing  business  in  the  State  of 
Arkansas  and  the  Indian  Territory,  owning  maintaining  and 
operating  a  line  of  railway  through  said  States  and  Territory ; 
that  on  the  20th  day  of  July,  1890,  the  deceased,  James  A.  Mc- 


Sec.  2.]  st.  louis  ry.  co.  v.  mc  bride.  83 

Bride,  was  in  the  employ  of  defendant;  and  that  on  that  day, 
and  in  the  Indian  Territory,  while  at  work  as  a  brakeman  on  a 
freight  train,  he  was,  through  the  negligence  of  said  defendant, 
so  injured  that  on  the  22d  day  of  July  he  died.  The  complaint 
further  disclosed  the  circumstances  under  which  the  accident 
occurred ;  alleged  the  dependence  of  the  plaintiffs  upon  the  de- 
ceased for  support  and  prayed  judgment  for  twenty  thousand 
dollars  damages. 

The  record  contains  no  process,  or  service  thereof.  On  the  4th 
day  of  November,  1890,  the  defendant  filed  a  demurrer,  on  three 
grounds  as  follows:  "1st.  Because  the  court  has  no  jurisdiction 
of  the  person  of  the  defendant.  2d.  Because  the  court  has  no 
jurisdiction  of  the  subject  matter  of  the  action,  3d.  Because  the 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action."  This  demurrer  was  overruled;  and  in  January,  1891, 
a  trial  was  had,  resulting  in  a  verdict  for  plaintiffs  in  the  sum  of 
four  thousand  dollars.  No  answer  appears  in  the  record,  though 
it  is  proper  to  say  that  counsel  for  defendants  in  error,  in  their 
brief,  states  that  service  of  process  was  made  upon  the  defendant 
by  delivering  a  copy  to  its  .station  agent  at  Fort  Smith,  Arkansas ; 
and  that  an  answer  was  filed  denying  the  defendant's  negligence, 
and  setting  up  also  contributory  negligence  on  the  part  of  the 
deceased,  but  not  denying  any  of  the  allegations  in  respect  to  the 
citizenship  and  residence  of  the  parties.  The  fact  of  an  answer 
seems  also  to  be  implied  from  the  record  of  the  trial,  which 
recites  that  "after  all  the  evidence  had  been  introduced  by  both 
parties  to  maintain  their  respective  issues,  etc. ' '  Judgment  was 
entered  on  the  verdict  for  the  sum  of  four  thousand  dollars,  and 
of  this  judgment  plaintiff  in  error  complains. 

As  the  judgment  did  not  exceed  five  thousand  dollars,  the  case 
can  only  come  to  this  court  on  the  question  of  the  jurisdiction  of 
the  Circuit  Court.  25  Stat.  693,  c.  236 ;  McCormick  Harvesting 
Machine  Co.  v.  Walthers,  134  U.  S.  41. 

The  action  was  one  to  recover  money,  the  sum  claimed  being 
in  excess  of  two  thousand  dollars,  and  was  between  citizens  of 
different  States,  and  was  brought  in  the  district  and  State  of  the 
residence  of  the  plaintiffs.  It  was  a  case,  therefore,  within  the 
general  jurisdiction  of  the  Circuit  Courts  of  the  United  States, 
under  section  1  of  chapter  866,  25  Stat.  433 ;  and  if  the  jurisdic- 
tion was  founded  only  on  the  fact  that  the  action  was  between 


84  PROCESS.  [Chap.  I. 

citizens  of  different  States  it  was  brought  in  the  Circuit  Court 
of  a  proper  district. 

The  contention  of  plaintiff  in  error  is,  that  the  jurisdiction 
is  not  founded  only  on  the  matter  of  diverse  citizenship,  but  that 
it  is  an  action  based  upon  a  statute  of  the  United  States,  and  to 
enforce  a  right  given  solely  by  such  statute,  and  is  therefore  one 
which  must  be  brought  in  the  district  of  which  the  defendant 
was  an  inhabitant.  Its  contention  goes  further  than  this.  It 
insists  that  under  a  proper  construction  of  the  United  States 
statutes  there  was  no  cause  of  action  existing  in  favor  of  the 
plaintiffs.  It  will  be  observed  that  the  action  is  one  to  recover 
damages  for  the  wrongful  acts  of  defendant,  in  causing  the 
death  of  the  husband  and  father  of  the  respective  plaintiffs. 
Such  an  action  did  not  survive  at  common  law.  The  wrongful 
acts  of  defendant  were  done  in  the  Indian  Territory.  On  May 
2,  1890,  an  act  was  pa.ssed  by  Congress  with  respect  to  the  Terri- 
tory of  Oklahoma  and  the  Indian  Territory.  Act  of  May  2,  1890, 
26  Stat.  81,  c.  182.  The  31st  section  extended  over  the  Indian 
Territory  the  provisions  of  certain  specified  statutes  of  Arkansas, 
among  them  one  chapter  relating  to  "pleadings  and  practice, 
chapter  119;"  and  in  that  chapter,  by  sections  5225  and  5226, 
it  is  provided  that  in  case  of  injuries  causing  death  a  right  of 
action  survives,  the  statute  being  substantially  like  that  now  in 
force  in  most  States  of  the  Union.  The  plaintiff  in  error  con- 
tends that  the  effect  of  the  act  of  Congress  extending  this  chapter 
over  the  Indian  Territory  was  not  to  put  in  force  therein  all  its 
sections,  but  only  those  relating  to  pleadings  and  practice ;  and 
that,  therefore,  there  being  no  other  law  than  the  common  law 
in  force  in  the  Indian  Territory,  the  complaint  stated  no  cause 
of  action.  And  further,  as  heretofore  stated,  that,  if  those  sec- 
tions in  respect  to  the  surviving  of  actions  were  extended  to  the 
Territory,  the  action  was  founded  on  the  statute  of  the  United 
States  alone,  and  such  an  action  must  be  brought  in  the  district 
of  which  the  defendant  is  an  inhabitant. 

The  first  of  these  questions  is  not  open  to  inquiry  in  this  case. 
The  complaint  making  no  reference  to  the  Federal  statute,  alleges 
wrongful  acts  on  the  part  of  the  defendant  and  prays  to  recover 
damages  therefor.  Whether  upon  those  facts  the  plaintiffs  are 
entitled  to  recover  is  not  a  matter  of  jurisdiction,  but  one  of 
the  merits  of  the  controversy.  Suppose  in  a  State  where  there 
is  no  statute  providing  for  the  surviving  of  such  an  action  a 


Sec.  2.]  st.  louis  ry.  go.  v.  mc  bride.  85 

suit  is  brought  by  the  widow  and  children  of  a  deceased  person, 
alleging  that  his  death  was  caused  by  the  wrongful  act  of  the 
defendant,  and  the  defendant  having  been  served  with  process 
enters  its  appearance  and  denies  all  liability,  and  the  trial  court 
improperly  holds  that  there  was  liability  and  renders  judgment 
for  damages,  is  there  anything  other  than  a  matter  of  erroneous 
ruling  upon  the  merits  ?  Could  it  be  held  that  the  court  had  no 
jurisdiction,  no  right  to  hear  and  determine  the  controversy 
between  the  parties?  So,  here,  whether  there  was  or  was  not  a 
statute  in  force  in  the  Indian  Territory,  providing  that  an  actiou 
should  survive  in  case  of  death,  and  whether  upon  the  facts 
stated  in  the  complaint  the  plaintiffs  had  a  cause  of  action 
against  the  defendant,  were  questions  entering  into  the  merits 
of  the  controversy,  and  not  matters  affecting  the  jurisdiction 
of  the  court.  If  it  had  jurisdiction  of  the  parties,  it  had  the 
right  to  inquire  and  determine  whether  upon  those  facts  the 
plaintiffs  were  entitled  to  judgment. 

Neither  can  the  other  contention  of  plaintiff  in  error  be  sus- 
tained. Assuming  that  service  of  process  was  made,  although 
the  record  contains  no  evidence  thereof,  and  that  the  defendant 
did  not  voluntarily  appear,  its  first  appearance  was,  not  to  raise 
the  question  of  jurisdiction  alone,  but  also  that  of" the  merits  of 
the  case.  Its  demurrer,  as  appears,  was  based  on  three  grounds : 
Two  referring  to  the  question  of  jurisdiction,  and  the  third,  that 
the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  There  was,  therefore,  in  the  first  instance,  a  general 
appearance  to  the  merits.  If  the  case  was  one  of  which  the 
court  could  take  jurisdiction,  such  an  appearance  waives  not 
only  all  defects  in  the  service,  but  all  special  privileges  of  the 
defendant  in  respect  to  the  particular  court  in  which  the  actiou 
is  brought. 

The  first  part  of  section  1  of  the  act  of  1887,  as  amended  in 
1888,  gives,  generally,  to  the  Circuit  Courts  of  the  United  States, 
jurisdiction  of  controversies  between  citizens  of  different  States 
where  the  matter  in  dispute  exceeds  the  sum  of  two  thousand 
dollars,  exclusive  of  interest  and  costs.  Such  a  controversy  was 
presented  in  this  complaint.  It  was,  therefore,  a  controversy 
of  which  the  Circuit  Courts  of  the  United  States  have  jurisdic- 
tion. Assume  that  it  is  true,  as  defendant  alleges,  that  this  is 
not  a  ease  in  which  jurisdiction  is  founded  only  on  the  fact 
that  the  controversy  is  between  citizens  of  different  States,  but 


86  PROCESS.  [Chap,  I. 

that  it  comes  within  the  scope  of  that  other  clause,  which  provides 
that  ' '  no  civil  suit  shall  be  brought  before  either  of  said  courts, 
against  any  person,  by  any  original  process  or  proceeding,  in 
any  other  district  than  that  whereof  he  is  an  inhabitant,"  still 
the  right  to  insist  upon  suit  only  in  the  one  district  is  a  personal 
privilege  which  he  may  waive,  and  he  does  waive  it  by  pleading 
to  the  merits.  In  Ex  parte  Schollenberger,  96  U.  S.  369,  378, 
Chief  Justice  Waite  said:  "The  act  of  Congress  prescribing 
the  place  where  a  person  may  be  sued  is  not  one  affecting  the 
general  jurisdiction  of  the  courts.  It  is  rather  in  the  nature 
of  a  personal  exemption  in  favor  of  a  defendant,  and  it  is  one 
which  he  may  waive."  The  judiciary  act  of  1789,  section  11, 
1  Stat.  79,  besides  giving  general  jurisdiction  to  Circuit  Courts 
over  suits  between  citizens  of  different  States,  further  provided, 
generally,  that  no  civil  suit  should  be  brought  before  either  of 
said  courts,  against  an  inhabitant  of  the  United  States,  by  any 
original  process,  in  any  other  district  than  that  of  which  he  was 
an  inhabitant,  or  in  which  he  should  be  found.  In  the  case  of 
Toland  v.  Sprague,  12  Pet.  300,  330,  it  appeared  that  the  de- 
fendant was  not  an  inhabitant  of  the  State  in  which  the  suit 
was  brought,  nor  found  therein.  In  that  case  the  court  observed : 
' '  It  appears  that  the  party  appeared  and  pleaded  to  issue.  Now, 
if  the  case  were  one  of  a  want  of  jurisdiction  in  the  court,  it 
would  not,  according  to  well-established  principles,  be  competent 
for  the  parties  by  any  acts  of  theirs  to  give  it.  But  that  is  not 
the  case.  The  court  had  jurisdiction  over  the  parties  and  the 
matter  in  dispute;  the  objection  was  that  the  party  defendant, 
not  being  an  inhabitant  of  Pennsylvania,  nor  found  therein, 
personal  process  could  not  reach  him.  *  *  *  Now,  this  was 
a  personal  privilege  or  exemption,  which  it  was  competent  for  the 
party  to  waive.  The  cases  of  Pollard  v.  Dwight,  4  Cranch,  421, 
and  Barry  v.  Foyles,  1  Pet.  311,  are  decisive  to  show  that,  after 
appearance  and  plea,  the  case  stands  as  if  the  suit  were  brought 
in  the  usual  manner.  And  the  first  of  these  eases  proves  that 
exemption  from  liability  to  process,  and  that  in  case  of  foreign 
attachment,  too,  is  a  personal  privilege,  which  may  be  waived, 
and  that  appearing  and  pleading  will  produce  that  waiver."  In 
Lexington  v.  Butler,  14  Wall.  282,  the  jurisdiction  of  the  Circuit 
Court  over  a  controversy  between  citizens  of  different  States  was 
sustained  in  a  case  removed  from  the  state  court,  although  it 
was  conceded  that  the  suit  could  not  have  been  commenced  in 


Sec.  2.  ]  jones  v.  merrill.  87 

the  first  instance  in  the  Circuit  Court.     See  also  Claflin  v.  Com- 
monwealth Ins.  Co.,  110  U.  S.  81. 

Without  multiplying  authorities  on  this  question,  it  is  obvious 
that  the  party  who  in  the  first  instance  appears  and  pleads  to 
the  merits  waives  any  right  to  challenge  thereafter  the  jurisdic- 
tion of  the  court  on  the  ground  that  the  suit  has  been  brought 
in  the  wrong  district.  Charlotte  Nat.  Bank  v.  Morgan,  132  U.  S. 
141 ;  Fitzgerald  Construction  Co.  v.  Fitzgerald,  137  U.  S.  98. 

It  follows  from  these  considerations  that  the  Circuit  Court  had 
jurisdiction ;  and,  as  that  is  the  only  question  before  us,  the 
judgment  must  be 

Affirmed. 


JONES  V.  MERRILL. 

113  Michigan,  433.     [1897.] 

Ejectment  by  Susan  L.  Jones  against  Esther  E,  Merrill.  The 
plaintiff  claimed  title  under  a  foreclosure  sale  based  on  a  decree 
23ro  confesso.  There  was  a  jugment  for  plaintiff  on  a  directed 
verdict,  and  the  defendant  sued  out  a  writ  of  error. 

Montgomery,  J.  The  validity  of  the  foreclosure  proceeding 
depends  wholly  upon  the  question  of  whether  the  court  obtained 
jurisdiction  by  an  acceptance  of  service  signed  by  the  defendant 
in  that  proceeding  in  Montana.  The  language  of  the  acceptance 
indorsed  upon  the  subpoena  was  as  follows:  "I  hereby  admit 
due  personal  service  upon  me  of  the  within  subpoena  this  11th 
day  of  September,  1894. 

"Melissa  C,  Livermore." 

We  had  occasion  to  refer  to  this  subject  in  Allured  v.  Voller, 
107  Mich.  476.  In  that  case  it  appeared  that  there  was  an 
acceptance  beyond  the  jurisdiction  of  the  court,  in  which  accept- 
ance there  was  also  a  waiver  of  formal  service  by  an  officer,  and  a 
permission  to  the  plaintiff  to  proceed  with  the  case  the  same  as 
though  service  had  been  made  as  commanded  in  said  summons. 
As  was  said  in  that  case,  the  authorities  are  not  harmonious  upon 
the  subject  of  a  mere  acceptance  of  the  service  of  a  writ  beyond 
the  jurisdiction  of  the  court.  It  became  unnecessary  for  us  to 
determine  the  effect  of  such  acceptance  in  that  case,  as  we 


88  PROCESS.  [Chap.  I. 

deemed  that  there  was  an  express  waiver  and  authority  in 
writing  conferred  upon  the  plaintiff  to  proceed  with  the 
case.  In  the  present  case  it  is  unnecessary  to  determine 
the  effect  of  a  mere  acceptance  of  a  service  shown  upon 
its  face  to  be  beyond  the  jurisdiction  of  the  court.  In  this  case 
the  acceptance  purports  to  be  an  acceptance  of  due  personal 
service,  which  means  a  service  which  will  confer  jurisdiction  upon 
the  court.  The  case  of  Cheney  v.  Harding,  21  Neb.  65,  goes 
further  than  is  necessary  to  sustain  the  holding  of  the  circuit 
judge  in  this  case.  In  that  case  the  admission  of  service  showed 
upon  its  face  that  the  service  was  made  at  the  residence  of  the 
party,  in  another  State.  Yet  the  court  held  that  the  defendant 
was  bound  by  such  acknovrledgment  or  acceptance  of  service, 
even  though  outside  the  territorial  jurisdiction  of  the  court  to 
which  it  was  returnable. 

In  the  early  case  of  Dunn  v.  Dunn,  4  Paige  430,  Chancellor 
Walworth  said :  "In  all  cases  where  the  court  has  jurisdiction 
over  the  subject-matter  of  the  suit,  if  the  defendant,  who  is 
beyond  the  limits  of  the  State,  thinks  proper  to  waive  that  ob- 
jection by  a  voluntarj^  appearance,  or  by  consenting  to  accept 
as  regular  the  service  of  process  upon  him  at  the  place  where  he 
resides  or  is  found,  he  cannot  afterwards  object  to  the  regularity 
of  the  proceedings  against  him,  founded  on  such  service." 

In  the  case  of  Vermont  Farm  Machine  Co.  v.  Marble,  20  Fed. 
117,  it  appeared  that  the  defendant  accepted  service  of  the 
subpoena,  "to  have  the  same  effect  as  if  duly  served  on  him  by 
proper  officer."  It  was  held  that  in  so  accepting  service  the 
defendant  subjected  himself  to  the  jurisdiction  of  a  court  sitting 
in  a  district  of  which  he  was  not  a  resident.  See,  also.  Ex  parte 
Schollenberger,  96  U.  S.  369 ;  Laramore  v.  Chastian,  25.  Ga.  592 ; 
Shaw  V.  National  State  Bank,  49  low  a,  179.  The  case  of  Weather- 
bee  V.  Weatherbee,  20  Wis.  499,  distinctly  holds  the  opposite 
doctrine.  But  that  case  is  in  conflict  with  our  own  holding  in 
Allured  v.  Voller,  and  an  attempt  was  made  to  distinguish  it  in 
Keeler  v.  Keeler,  24  Wis.  522.  We  think  it  an  entirely  safe  rule 
that  a  party  may  w^aive  service  of  process  by  any  act  clearly 
evidencing  an  intention  to  do  so.  The  bare  admission  of  the 
fact  of  service  beyond  the  territorial  jurisdiction  of  the  court 
should  not  be  deemed  a  waiver.  But  an  admission  of  service  so 
w^orded  as  to  clearly  evidence  an  intent  to  waive  further  service 


I 


Sec.  2.]  anonymous,  89 

should  be  held  to  amount  to  a  waiver.     Such  intent  is  clear  in  the 
present  case.^ 


ANONYMOUS. 

1  cutty,  129.     [1819.] 

Walford  moved  to  set  aside  the  writ  of  latitat  on  the  ground  of 
irregularity,  it  appearing  that  the  Avrit  was  served  on  the  25tli  of 
January,  but  tested  only  on  the  30th,  on  which  day  it  was  return- 
able. He  thought  it  necessarj^,  however,  to  state  that  on  the  28th 
of  January,  before  the  return  of  the  writ,  the  defendant's  attor- 
ney wrote  a  letter  to  the  plaintiff,  stating  that  he  would  appear 
and  receive  a  declaration,  and  at  the  same  time  offered  security 
for  costs.     The  time  for  appearing  was  not  yet  out, 

Abbott,  C.  J,  At  the  time  the  defendant's  attorney  wrote  that 
letter,  he  had  not  discovered  the  error  in  the  writ.  I  think,  how- 
ever, he  is  bound  by  his  undertaking.  This  is  not  the  time, 
therefore,  for  him  to  take  advantage  of  the  objection.  The  writ 
is  in  itself  defective,  but  the  defendant's  attorney  has  waived 
the  objection  by  undertaking  to  appear,  and  consequently  it  is 
now  too  late  to  avail  himself  of  it. 

Rule  refused.^ 

1  Accord:  Eichardson  v.  Smith,  11  But  an  appearance  in  an  action  is 

Allen,  134;   Compare  Weatherbee  v.  a  very  different  matter.     An  appear- 

Weatherbee,   20   Wis.   499;    and   see  anee  may  be  made   without  the  is- 

tollowing   remarks  of  Dixon,   C.  J.,  suing    or    service    of    any    process 

in   Keeler   v,   Keeler,    24   Wis.    522.  whatsoever,  whether   by  publication 

"The   admission   by  the   defendant  or  otherwise.     It  may  be  made  as 

of  the  service  of  process  is  but  evi-  well  by  a  party  residing  without  the 

dence   of    such   service.      It   is    evi-  state  as  one  within  it.     An  appear- 

uence    of    the   same   force,    and    no  ance  is  a  waiver  of  all  previous  de- 

greater,    than    if    proof    of    service  fects  in  the  service  of  process,  and 

were   made   in   some   other   manner.  of    the    process    itself,    if    none   has 

In    either    case,    the    court   acquires  been    issued.      Upper    Miss.    Trans, 

jurisdiction,   if   at   all,   through  the  Co.   v.  Whittaker,  16  Wis.  220. 

service  of  the  process;   and  in  both  The   defendant  having,  therefore, 

alike,  the  service  is  void,  if  it  ap-  made  a  valid  appearance  in  the  ac- 

pears  that  it  was  made  out  of  the  tion,   it   follows   that  the   judgment 

state  without  an   order   of   publica-  must  be  affirmed, 

tion.     And  the  waiver  by  the  party  i  Compare  Scholfield,   J.,  in  Soles 

of   any   other   service   made   out   of  v.  Sheppard,  96  111.  131,  "All  that 

the  state  does  not  cure  the  defect.  is    shown    by   the    affidavit   filed    in 


90 


PROCESS. 


[Chap.  I. 


YORK  V.  TEXAS. 

137  V.  S.  15.     [1890.] 

On  the  14th  day  of  November,  1888,  a  personal  judgment  was 
rendered  in  the  District  Court  of  Travis  County,  Texas,  against 
the  plaintiff  in  error,  which  judgment  was  subsequently  affirmed 
by  the  Supreme  Court  of  the  State.  Error  is  now  alleged  in 
this,  that  the  District  Court  had  no  jurisdiction  of  the  person 
of  the  defendant.  The  record  discloses  that  on  October  20,  1885, 
the  defendant  leased  from  the  State  certain  school  lands,  at  a 
stipulated  rental.  The  lease  provided  that  in  all  suits  there- 
under the  venue  should  be  laid  in  Travis  County,  Texas.  The 
State  filed  its  petition  on  February  15,  1888,  alleging  non-pay- 
ment of  the  rent  due  in  1886  and  1887.  The  defendant  being  a 
non-resident,  a  citizen  of  St.  Louis,  ]\Iissouri,  a  notice  in  accord- 
ance with  the  provisions  of  the  statute  was  served  upon  him 
personally  in  that  city.  No  question  is  made  but  that  the  service 
was  in  strict  conformity  with  the  letter  of  the  statute.  On  March 
9,  1888,  the  defendant  appeared  by  his  counsel  and  filed  a  special 
plea,  challenging  the  jurisdiction  of  the  court  on  the  ground  that 
he  was  a  non-resident  and  had  not  been  served  personally  with 
process  within  the  limits  of  the  State.  This  plea  was  overruled. 
Thereafter,  and  on  the  5th  day  of  October,  1888,  the  defendant 
appeared  by  his  attorneys  in  open  court,  demanded  a  jury,  paid 
the  jury  fee,  and  had  the  cause  transferred  to  the  jury  docket. 
On  the  6th  day  of  October  he  again  filed  a  plea  to  the  jurisdiction, 
on  the  same  ground,  which  was  also  overruled.  On  the  14th  day 
of  November,  when  the  cause  was  reached  and  called  for  trial, 
he  again  appeared  by  his  attorneys,  waived  his  right  of  trial  by 
a  jury  and  his  demand  of  a  jury  and  declined  to  further  answer 
to  the  cause — relying  solely  upon  his  plea  to  the  jurisdiction. 
The  court  thereupon  proceeded  t6  render  judgment  against  him, 
which,  as  heretofore  stated,  was  affirmed  by  the  Supreme  Court. 
73  Texas,  651. 


support  of  this  motion  is'  that  the 
attorney  for  the  defendant  in  error 
made  an  agreement  that  he  would 
enter  the  appearance  of  his  client, 
and  has  violated  that  agreement. 
This  might  give  a  cause  of  action 
against  the  attorney,  but  it  does  not 


constitute  an  appearance.  No  scire 
facias  has  been  served,  nor  has 
there  been  any  jjublication  of  notice. 
The  defendant  in  error  is  not  in 
court. 

Motion   denied. 


Sec.  2.]  york  v.  texas.  91 

Mr.  Justice  Brewer,  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

It  was  conceded  by  the  District  and  the  Supreme  Courts  that 
the  service  upon,  the  defendant  in  St.  Louis  was  a  nullity,  and 
gave  the  District  Court  no  jurisdiction;  but  it  was  held  that, 
under  the  peculiar  statutes  of  the  State  of  Texas,  the  appearance 
for  the  purpose  of  pleading  to  the  jurisdiction  was  a  voluntary 
appearance,  which  brought  the  defendant  into  court.  Plaintiif 
in  error  questions  this  construction  of  the  Texas  statutes;  but, 
inasmuch  as  the  Supreme  Court,  the  highest  court  of  the  State, 
has  so  construed  them,  such  construction  must  be  accepted  here 
as  correct,  and  the  only  question  we  can  consider  is,  as  to  the 
power  of  the  State  in  respect  thereto. 

It  must  be  conceded  that  such  statutes  contravene  the  estab- 
lished rule  elsewhere — a  rule  which  also  obtained  in  Texas  at  an 
earlier  day,  to-wit,  that  an  appearance  which,  as  expressed,  is 
solely  to  challenge  the  jurisdiction,  is  not  a  general  appearance 
in  the  cause  and  does  not  waive  the  illegality  of  the  service  or 
submit  the  party  to  the  jurisdiction  of  the  court. ^  Harkness  v. 
Hyde,  98  U.  S.  476;  Raquet  v.  Nixon,  Dallas  (Texas),  386; 
DeWitt  V.  Monroe,  20  Texas,  289 ;  Hagood  v.  Dial,  43  Texas,  625 ; 
Robinson  v.  Schmidt,  48  Texas,  19. 

The  difference  between  the  present  rule  in  Texas  and  else- 
where is  simply  this:  Elsewhere  the  defendant  may  obtain  the 
judgment  of  the  court  upon  the  sufficiency  of  the  service,  without 
submitting  himself  to  its  jurisdiction.  In  Texas,  by  its  statute, 
if  he  asks  the  court  to  determine  any  question,  even  that  of 
service,  he  submits  himself  wholly  to  its  jurisdiction.  Elsewhere 
he  gets  an  opinion  of  the  court  before  deciding  on  his  own  action. 
In  Texas  he  takes  all  the  risk  himself.  If  the  service  be  in  fact 
insufficient,  all  subsequent  proceedings,  including  the  formal 
entry  of  judgment,  are  void;  if  sufficient,  they  are  valid.  And 
the  question  is,  whether  under  the  Constitution  of  the  United 
States  the  defendant  has  an  inviolable  right  to  have  this  question 
of  the  sufficiency  of  the  service  decided  in  the  first  instance  and 
alone.2 

1  But    see    Griggs    v.    Gilmer,    54  ate    as    a    general    appearance    has  • 
Ala.  425,  post  174.  been     held     unreasonable.     Huff    v. 

2  But  a  rule  of  court  attempting  Shepard,  58  Mo.  242. 
to  make  a  special  appearance  oper- 


92  PROCESS.  [Chap.  I. 

The  Fourteenth  Amendment  is  relied  upon  as  invalidating  such 
legislation.  That  forbids  a  State  to  ' '  deprive  any  person  of  life, 
liberty  or  property,  without  due  process  of  law."  And  the 
proposition  is,  that  the  denial  of  a  right  to  be  heard  before 
judgment  simply  as  to  the  sufficiency  of  the  service  operates  to 
deprive  the  defendant  of  liberty  or  property.  But  the  mere 
entry  of  a  judgment  for  money,  which  is  void  for  want  of  proper 
service,  touches  neither.  It  is  only  when  process  is  issued  thereon 
or  the  judgment  is  sought  to  be  enforced  that  liberty  or  property 
is  in  present  danger.  If  at  that  time  of  immediate  attack  pro- 
tection is  afforded,  the  substantial  guarantee  of  the  amendment 
is  preserved,  and  there  is  no  just  cause  of  complaint.  The  State 
has  full  power  over  remedies  and  procedure  in  its  own  courts, 
and  can  make  any  order  it  pleases  in  respect  thereto,  provided 
that  substance  of  right  is  secured  without  unreasonable  burden 
to  parties  and  litigants.  Antoni  v.  Greenhow,  107  U.  S.  769. 
It  certainly  is  more  convenient  that  a  defendant  be  permitted  to 
object  to  the  service,  and  raise  the  question  of  jurisdiction,  in  the 
first  instance,  in  the  court  in  which  suit  is  pending.  But  mere 
convenience  is  not  substance  of  right.  If  the  defendant  had  taken 
no  notice  of  this  suit,  and  judgment  had  been  formally  entered 
upon  such  insufficient  service,  and  under  process  thereon  his 
property,  real  or  personal,  had  been  seized  or  threatened  with 
seizure,  he  could  by  original  action  have  enjoined  the  process  and 
protected  the  possession  of  his  property.  If  the  judgment  had 
been  pleaded  as  defensive  to  any  action  brought  by  him,  he  would 
have  been  free  to  deny  its  validity.  There  is  nothing  in  the 
opinion  of  the  Supreme  Court  or  in  any  of  the  statutes  of  the 
State,  of  which  we  have  been  advised,  gainsaying  this  right.  Can 
it  be  held,  therefore,  that  legislation  simply  forbidding  the 
defendant  to  come  into  court  and  challenge  the  validity  of  service 
upon  him  in  a  personal  action,  without  surrendering  himself  to 
the  jurisdiction  of  the  court,  but  which  does  not  attempt  to 
restrain  him  from  fully  protecting  his  person,  his  property  and 
his  rights  against  any  attempt  to  enforce  a  judgment  rendered 
without  due  service  of  process,  and  therefore  void,  deprives  him 
of  liberty  or  property,  within  the  prohibition  of  the  Fourteenth 
Amendment?     "We  think  not. 

The  judgment  is  affirmed. 

Mr.  Justice  Bradley  and  Mr.  Justice  Gray  dissented. 


Sec.  2.]  goldey  v.  morning  news.  93 

GOLDEY  V.  MORNING  NEWS. 

156  V.  S.  518.      [1894.] 

Plaintiff  brought  suit  in  the  State  Court  against  the  defendant, 
a  foreign  corporation,  and  caused  summons  to  be  served  on  its 
president  while  casually  in  the  State.  The  defendant  removed 
the  case  to  the  Circuit  Court  of  the  United  States,  where  the 
service  was  vacated  and  the  action  dismissed  on  motion.  Plain- 
tiff sued  out  a  writ  of  error. ^ 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion 
of  the  court.  It  was  contended,  in  behalf  of  the  plaintiff,  that  the 
defendant,  by  filing  in  the  State  Court  a  petition  for  the  removal 
of  the  case  into  the  Circuit  Court  of  the  United  States,  had  treated 
the  case  as  actually  and  legally  pending  in  the  court  of  the  State, 
and  had  waived  all  defects  in  the  service  of  the  summons.  The 
position  is  supported  by  a  decision  of  Mr.  Justice  Curtis  in 
Sayles  v.  Northwestern  Ins.  Co.,  2  Curtis,  212 ;  by  a  dictum  of 
Chief  Justice  Chase  in  Bushnell  v.  Kennedy,  9  Wall.  387,  393 ; 
by  opinions  of  Judge  Coxe  in  Edwards  v.  Connecticut  Ins.  Co., 
20  Fed.  Rep.  452,  and  Judge  Sage  in  Tallman  v.  Baltimore  & 
Ohio  Railroad,  45  Fed.  Rep.  156 ;  and  by  the  judgment  of  the 
Court  of  Appeals  of  New  York  in  Farmer  v.  National  Life  Asso- 
ciation, 138  N.  Y.  265. 

But  the  ground  of  the  decision  in  Bushnell  v.  Kennedy  was,  in 
accordance  with  earlier  and  later  decisions,  that  the  restriction, 
in  former  judiciary  acts,  upon  the  jurisdiction  of  the  Circuit 
Court  over  a  suit  originally  brought  by  an  assignee,  which  his 
assignor  could  not  have  brought  in  that  court,  did  not  apply 
to  its  jurisdiction  by  removal  of  an  action  originally  brought  in 
a  State  Court.  Green  v.  Custard,  23  How.  484;  Lexington  v. 
Butler,  14  Wall.  282 ;  Claflin  v.  Commonwealth  Ins.  Co.,  110  U.  S. 
81 ;  Delaware  County  v.  Diebold  Co.,  133  U.  S.  473.  And  the 
theory  that  a  defendant,  by  filing  in  the  State  Court  a  petition 
for  removal  into  the  Circuit  Court  of  the  United  States,  neces- 
sarily waives  the  right  to  insist  that  for  any  reason  the  State 
Court  had  not  acquired  jurisdiction  of  his  person,  is  inconsistent 
with  the  terms,  as  well  as  with  the  spirit,  of  the  existing  act  of 

1  The  statement  has  been  con- 
densed for  a  full  statement  see  post, 
p.  111. 


94  PROCESS.  [Chap.  I. 

Congress  regulating  removals  from  a  court  of  a  State  into  the 
Circuit  Court  of  the  United  States. 

The  jurisdiction  of  the  Circuit  Court  of  the  United  States 
depends  upon  the  acts  passed  by  Congress  pursuant  to  the  power 
conferred  upon  it  by  the  Constitution  of  the  United  States,  and 
cannot  be  enlarged  or  abridged  by  any  statute  of  a  State.  The 
legislature  or  the  judiciary  of  a  State  can  neither  defeat  the 
right  given  by  a  constitutional  act  of  Congress  to  remove  a  case 
from  a  court  of  the  State  into  the  Circuit  Court  of  the  United 
States,  nor  limit  the  effect  of  such  removal.  Gordon  v.  Longest, 
16  Pet.  97;  Insurance  Co.  v.  Morse,  20  Wall.  445;  Barron  v. 
Burnside,  121  U.  S.  186 ;  Southern  Pacific  Co.  v.  Denton,  146 
U.  S.  202,  207-209.  As  was  said  by  this  court  in  Gordon  v. 
Longest,  "One  great  object  in  the  establishment  of  the  courts 
of  the  United  States  and  regulating  their  jurisdiction  was  to 
have  a  tribunal  in  each  State,  presumed  to  be  free  from  local 
influence,  and  to  which  all  who  were  non-residents  or  aliens  might 
resort  for  legal  redress."     16  Pet.  104. 

The  act  of  Congress,  by  which  the  practice,  pleadings  and 
forms  and  modes  of  proceeding,  in  actions  at  law  in  the  Circuit 
Court  of  the  United  States,  are  required  to  conform,  as  near  as 
may  be,  to  those  existing  at  the  time  in  the  courts  of  the  State 
within  which  it  is  held,  applies  only  to  cases  of  which  the  court 
has  jurisdiction  according  to  the  Constitution  and  laws  of  the 
United  States.  Rev.  Stat.  §  914 ;  Southern  Pacific  Co.  v.  Denton, 
above  cited ;  Mexican  Central  Railway  Co.  v.  Pinkney,  149  U.  S. 
194. 

By  the  act  of  Congress,  under  which  the  present  action  was 
removed  by  the  defendant  into  the  Circuit  Court  of  the  United 
States,  any  action  at  law,  brought  in  a  court  of  a  State  between 
citizens  of  different  States,  in  which  the  matter  in  dispute  exceeds 
the  sum  or  value  of  .$2,000  may  be  removed  into  the  Circuit  Court 
of  the  United  States  by  the  defendant  being  a  non-resident  of 
that  State,  by  filing  a  petition  and  bond  in  the  State  Court  "at 
the  time  or  at  any  time  before  the  defendant  is  required  by  the 
laws  of  the  l^tate,  or  the  rule  of  the  State  Court  in  which  such 
suit  is  brought,  to  answer  or  plead  to  the  declaration  or  complaint 
of  the  plaintiff;"  and  it  shall  then  be  the  duty  of  the  State  Court 
to  proceed  no" further  in  the  suit;  and.  upon  the  entry  of  a  copy 
of  the  record  in  the  Circuit  Court  of  the  United  States,  "the 
cause  shall  then  proceed  in  the  same  manner  as  if  it  had  been 


Sec.  2.]  goldey  v.  morning  news.  95 

originally  commenced  in  .said  Circuit  Court."     Act  of  August 
13,  1888,  c.  866 ;  25  Stat.  434,  435. 

It  has  been  held  by  this  court,  upon  full  consideration,  that 
the  provision  of  this  act,  that  the  petition  for  removal  shall  be 
filed  in  the  State  Court  at  or  before  the  time  when  the  defendant 
is  required  by  the  local  law  or  rule  of  court  ' '  to  answer  or  plead 
to  the  declaration  or  complaint,"  requires  the  petition  to  be 
there  filed  at  or  before  the  time  when  the  defendant  is  so  required 
to  file  any  kind  of  plea  or  answer,  "whether  in  matter  of  law, 
by  demurrer,  or  in  matter  of  fact,  either  by  dilatory  plea  to  the 
jurisdiction  of  the  court  or  in  suspension  or  abatement  of  the 
particular  suit,  or  by  plea  in  bar  of  the  whole  right  of  action, ' ' 
because,  as  the  court  said,  "Construing  the  provision  now  in 
question,  having  regard  to  the  natural  meaning  of  its  language, 
and  to  the  history  of  the  legislation  upon  this  subject,  the  only 
reasonable  inference  is  that  Congress  contemplated  that  the  peti- 
tion for  removal  should  be  filed  in  the  State  Court  as  soon  as  the 
defendant  was  required  to  make  any  defense  whatever  in  that 
court,  so  that,  if  the  case  should  be  removed,  the  validity  of  any 
and  all  of  his  defenses  should  be  tried  and  determined  in  the 
Circuit  Court  of  the  United  States."  Martin  v.  Baltimore  & 
Ohio  Railroad,  151  U.  S.  673,  686,  687. 

As  the  defendant's  right  of  removal  into  the  Circuit  Court 
of  the  United  States  can  only  be  exercised  by  filing  the  petition 
for  removal  in  the  State  Court  before  or  at  the  time  when  he  is 
required  to  plead  in  that  court  to  the  jurisdiction  or  in  abate- 
ment, it  necessarily  follows  that,  whether  the  petition  for  removal 
and  such  a  plea  are  filed  together  at  that  time  in  the  State  Court ; 
or  the  petition  for  removal  is  filed  before  that  time  in  the  State 
Court  and  the  plea  is  seasonably  filed  in  the  Circuit  Court  of  the 
United  States  after  the  removal,  the  plea  to  the  jurisdiction  or 
in  abatement  can  only  be  tried  and  determined  in  the  Circuit 
Court  of  the  United  States. 

Although  the  suit  must  be  actually  pending  in  the  State  Court 
before  it  can  be  removed,  its  removal  into  the  Circuit  Court  of 
the  United  States  does  not  admit  that  it  was  rightfully  pending 
in  the  State  Court,  or  that  the  defendant  could  have  been  com- 
pelled to  answer  therein;  but  enables  the  defendant  to  avail 
himself,  in  the  Circuit  Court  of  the  United  States,  of  any  and 
every  defense,  duly  and  seasonably  reserved  and  pleaded,  to  the 


96  PROCESS.  [Chap.  I. 

action,  "in  the  same  manner  as  if  it  had  been  originally  com- 
menced in  said  Circuit  Court." 

How  far  a  petition  for  removal,  in  general  terms,  without 
specifying  and  restricting  the  purpose  of  the  defendant's  appear- 
ance in  the  State  Court,  might  be  considered,  like  a  general 
appearance,  as  a  waiver  of  any  objection  to  the  jurisdiction  of 
the  court  over  the  person  of  the  defendant,  need  not  be  con- 
sidered; because,  in  the  petition  filed  in  the  State  Court  for 
the  removal  of  this  action  into  the  Circuit  Court  of  the  United 
States,  it  was  expressed  that  the  defendant  appeared  specially 
and  for  the  sole  and  single  purpose  of  presenting  the  petition 
for  removal.2  This  was  strictly  a  special  appearance  for  this 
purpose  only,  and,  whether  the  attempt  to  remove  should  be 
successful  or  unsuccessful,  could  not  be  treated  as  submitting  the 
defendant  to  the  jurisdiction  of  the  State  Court  for  any  other 
purpose.  Likewise,  in  the  motion  filed  by  the  defendant  in  the 
Circuit  Court  of  the  United  States,  immediately  after  the  action 
had  been  removed  into  that  court,  for  an  order  setting  aside  the 
summons  and  the  service  tliereof,  it  was  expressed  that  the 
defendant  appeared  by  its  attorney  specially  for  the  purpose 
of  applying  for  this  order.  Irregularity  in  a  proceeding  by 
which  jurisdiction  is  to  be  obtained  is  in  no  case  waived  by  a 
special  appearance  of  the  defendant  for  the  purpose  of  calling 
the  attention  of  the  court  to  such  irregularity.  Harkness  v. 
Hyde,  98  U.  S.  476 ;  Southern  Pacific  Co.  v.  Denton,  146  U.  S. 
202 ;  Mexican  Central  Railway  v.  Pinkney,  149  U.  S.  194. 

The  necessary  conclusion  appears  to  this  court  to  be  that  the 
defendant's  right  to  object  to  the  insufficiency  of  the  service  of 
the  summons  was  not  waived  by  filing  the  petition  for  removal 
in  the  guarded  form  in  which  it  was  drawn  up,  and  by  obtaining 

2  The  application  for  removal  need  jurisdiction   over   the  person  except 

not    state    that    the    appearance    is  where  based  on   disqualifications  of 

limited    to    that    purpose.      Ey.    v.  the    judge,    Freeman    v.    Burks,    16 

Brow,    164    U.    S.    271.      But   it    is  Nebr.  328;  Julian  v.  Star  Pub.  Co., 

sometimes  held  that  an  appearance  209    Mo.    35;     but    see    dissenting 

should  be  treated  as  general  unless  opinion. 

expressly  limited  to  a  jurisdictional  An    application    for    time    within 

matter,  Deshler  v.  Foster,   1   Morris  which  to  determine  whether  to  enter 

(la.)    403.  a  general  or  special  appearance  does 

An  application  for   a   change   of  not  operate  as  a  waiver,  Lowrie  v. 

venue  is  usually  held  to  be  such  an  Castle,  198  Mass.  82. 
appearance  as  waives  objections  to 


Sec.  2.]  lowe  v.  stringham.  97 

a  removal  accordingly.  And  it  is  gratifying  to  know  that  this 
conclusion  is  in  accord  with  the  general  current  of  decision  in 
the  Circuit  Courts  of  the  United  States,  Parrott  v.  Alabama 
Ins.  Co.,  5  Fed.  Rep.  391;  Blair  v.  Turtle,  1  McCrary,  372; 
Atchinson  v.  Morris,  11  Bissell,  191;  Small  v.  Montgomery,  5 
McCrary,  440,  explaining  Sweeney  v.  Coffin,  1  Dillon,  73,  76; 
Hendrickson  v.  Chicago,  etc..  Railway,  22  Fed.  Rep.  569 ;  Elgin 
Co.  V.  Atchison,  etc..  Railway,  24  Fed.  Rep.  866;  Kauffman  v. 
Kennedy,  25  Fed.  Rep.  785;  Miner  v.  i\Iarkham,  28  Fed.  Rep. 
387 ;  Perkins  v.  Hendryx,  40  Fed.  Rep.  657 ;  Clews  v.  Woodstock 
Co.,  44  Fed.  Rep.  31 ;  Bentlif  v.  London  &  Colonial  Corporation, 
44  Fed.  R^p.  667;  Reifsnider  v.  American  Publishing  Co.,  45 
Fed.  Rep.  433 ;  Forrest  v.  Union  Pacific  Railroad,  47  Fed.  Rep. 
1;  O'Donnell  v.  Atchinson,  etc..  Railroad,  49  Fed.  Rep.  689; 
Ahlhauser  v.  Butler,  50  Fed.  Rep.  705 ;  McGillin  v.  Claflin,  52 


Fed.  Rep.  657. 


Judgment  affirmed. 


LOWE  V.  STRINGHAM. 

14  Wisconsin,  222.     [1861.] 

By  the  court,  Paine,  J.  This  was  an  action  of  replevin  com- 
menced before  a  justice  of  the  peace.  The  defendant  appeared, 
and  before  answering  moved  to  dismiss  the  suit,  because  the  writ 
was  returnable  on  the  third  day  after  it  issued,  not  excluding  a 
Sunday  which  intervened.  The  motion  was  denied,  and  the 
defendant  excepted.  He  then  answered  and  went  to  trial,  and 
the  plaintiff  recovered  judgment.  The  defendant  appealed,  and 
made  the  same  objection  in  the  Circuit  Court,  which  was  over- 
ruled and  an  exception  taken. 

We  think  the  objection  was  good,  and  if  properly  taken 
advantage  of,  that  the  writ  ought  to  have  been  quashed.  The 
statute  provides  that  the  warrant  ''shall  be  made  returnable  on 
the  third  day  after  it  shall  issue  (Sundays  excepted) ,  etc.  R.  S., 
chap.  120,  sec.  134.     *     *     * 

But  although  the  objection  was  good,  we  think  the  defendant 
waived  it  in  several  ways.  The  record  of  the  justice  shows  that 
the  parties  appeared  by  their  counsel,  which,  of  course,  in  the 


98  PROCESS.  [  Chap.  I. 

absence  of  any  qualification,  must  be  construed  to  be  a  general 
appearance.  And  it  is  a  familiar  rule,  that  a  general  appearance 
waives  any  defect  in  the  process.  This  is  too  well  settled  to  need 
the  citation  of  authorities.  To  avoid  the  effect  of  this  rule,  it  is 
the  common  practice,  when  it  is  desired  to  take  advantage  of 
such  defects,  to  appear  specially  for  that  purpose  only. 

We  think  it  is  also  a  waiver  of  such  a  defect  for  the  party, 
after  making  his  objection,  to  plead  and  go  to  trial  on  the  merits.^ 
To  allow  him  to  do  this  would  be  to  give  him  this  advantage. 
After  objecting  that  he  was  not  properly  in  court,  he  could  go  in, 
take  his  chance  of  a  trial  on  the  merits,  and  if  it  resulted  in  his 
favor,  insist  upon  the  judgment  as  good  for  his  benefit,  but  if  it 
resulted  against  him,  he  could  set  it  all  aside  upon  the  ground 
that  he  had  never  been  properly  got  into  court  at  all.  If  a 
party  wishes  to  insi.st  upon  the  objection  that  he  is  not  in  court, 
he  must  keep  out  for  all  purposes  except  to  make  that  objection. 
Caughey  v.  Vance,  3  Chand.  315-16 ;  Thayer  v.  Dove,  8  Blackf. 
567. 

We  also  think  the  defendant  could  not  take  advantage  of  this 
objection  on  an  appeal  to  the  Circuit  Court,  the  judgment  being 
over  $15.  The  object  of  an  appeal  in  such  cases  is  to  try  the 
case  anew  in  the  Appellate  Court  on  its  merits,  and  not  to  review 
errors  of  the  justice.  The  taking  of  such  an  appeal  is  equivalent 
to  an  appearance,  and  gives  the  Appellate  Court  jurisdiction  over 
the  person,  whether  the  service  of  the  process  before  the  justice 
was  sufficient  for  that  purpose  or  not.  Bamum  v.  Fitzpatrick, 
adm'r,  etc.,  11  Wis.  83,  and  cases  cited.  See  also  Hester  v. 
Murphy,  1  Ark.  55 ;  Ball  v.  Kuykendall,  2  id.  195 ;  Ser  v.  Bobst, 
8  Mo.  506;  Matlock  v.  King,  23  id.  400.  The  remedy  of  the 
party  in  such  a  case  would  seem  to  be  that  pointed  out  in  Wood 
V.  Randall,  5  Hill,  264,  that  is  a  common  law  certiorari. 


HARKNESS  v.  HYDE. 

98  V.  S.  476.      [1878.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  was  an  action  to  recover  damages  for  maliciously  and 

1  Accord :  Newcomb  v.  Ey.,  182 
Mo.  687;  Edwards  v.  Traction  Co., 
217  111.  409. 


Sec.  2.]  harkness  v.  hyde.  99 

without  probable  cause  procuring  the  seizure  and  detention  of 
property  of  the  plaintiff  under  a  writ  of  attachment.  It  was 
brought  in  September,  1873,  in  a  District  Court  of  the  Territory 
of  Idaho  for  the  County  of  Oneida.  The  summons,  with  a  copy 
of  the  complaint,  was  soon  afterwards  served  by  the  sheriff  of 
the  county  on  the  defendant,  at  his  place  of  residence,  which  was 
on  the  Indian  reservation,  known  as  the  Shoshonee  reservation. 

The  defendant  thereupon  appeared  specially  by  counsel  ap- 
pointed for  the  purpose,  and  moved  the  court  to  dismiss  the 
action,  on  the  ground  that  the  service  thus  made  upon  him  on 
the  Indian  reservation  was  outside  of  the  bailiwick  of  the  sheriff, 
and  without  the  jurisdiction  of  the  court.  Upon  stipulation  of 
the  parties  the  motion  was  adjourned  to  the  Supreme  Court  of 
the  Territory,  and  was  there  overruled.  To  the  decision  an 
exception  was  taken.  The  case  was  then  remanded  to  the  District 
Court,  and  the  defendant  filed  an  answer  to  the  complaint.  Upon 
the  trial  which  followed  the  plaintiff  obtained  a  verdict  for 
$3,500.  Upon  a  motion  for  a  new  trial  the  amount  was  reduced 
to  $2,500,  for  which  judgment  was  entered.  On  appeal  to  the 
Supreme  Court  of  the  Territory,  the  judgment  was  affirmed.  The 
defendant  thereupon  brought  the  case  here,  and  now  seeks  a 
reversal  of  the  judgment,  for  the  alleged  error  of  the  court  in 
refusing  to  dismiss  tbe  action  for  want  of  jurisdiction  over  him. 

The  act  of  Congress  of  March  3,  1863,  organizing  the  Territory 
of  Idaho,  provides  that  it  shall  not  embrace  within  its  limits  or 
jurisdiction  any  territory  of  an  Indian  tribe  without  the  latter 's 
assent,  but  that  "all  such  territory  shall  be  excepted  out  of  the 
boundaries,  and  constitute  no  part  of  the  Territory  of  Idaho," 
until  the  tribe  shall  signify  its  assent  to  the  President  to  be  in- 
cluded within  the  Territory.  12  Stat.  808.  *  *  *  The  ter- 
ritory reserved,  therefore,  was  as  much  beyond  the  jurisdiction, 
legislative  or  judicial,  of  the  government  of  Idaho  as  if  it  had 
been  set  apart  within  the  limits  of  another  country,  or  of  a 
foreign  State.  Its  lines  marked  the  bounds  of  that  government. 
The  process  of  one  of  its  courts,  consequently,  served  beyond 
those  lines,  could  not  impose  upon  the  defendant  any  obligation 
of  obedience,  and  its  disregard  could  not  entail  upon  him  any 
penalties.  The  service  was  an  unlawful  act  of  the  sheriff.  The 
court  below  should,  therefore,  have  set  it  aside  on  its  attention 
being  called  to  the  fact  that  it  was  made  upon  the  defendant  on 
the  reservation.     The  motion  was  to  dismiss  the  action,  but  it 


100 


PKOCESS. 


[Chap.  I. 


was  argued  as  a  motion  to  set  aside  the  service,  and  we  treat 
it  as  having  only  that  extent.  The  code  of  Idaho  considers  an 
action  as  commenced  when  the  complaint  is  filed,  and  provides 
that  a  summons  may  be  issued  within  one  year  afterwards.  Had 
the  defendant  been  found  in  Idaho  outside  the  limits  of  the 
Indian  reservation,  he  might  during  that  period  have  been  served 
with  process. 

There  can  be  no  jurisdiction  in  a  court  of  a  Territory  to  render 
a  personal  judgment  against  any  one  upon  service  made  outside 
its  limits.  Personal  service  within  its  limits,  or  the  voluntary 
appearance  of  the  defendant,  is  essential  in  such  cases.  It  is  only 
where  property  of  a  non-resident  or  of  an  absent  defendant  is 
brought  under  its  control,  or  where  his  assent  to  a  different  mode 
of  service  is  given  in  advance,  that  it  has  jurisdiction  to  inquire 
into  his  personal  liabilities  or  obligations  without  personal  service 
of  process  upon  him,  or  his  voluntary  appearance  to  the  action. 
Our  views  of  this  subject  are  expressed  at  length  in  the  late  case 
of  Pennoyer  v.  Neff  (95  U.  S.  714),  and  it  is  unnecessary  to 
repeat  them  here. 

The  right  of  the  defendant  to  insist  upon  the  objection  to  the 
illegality  of  the  service  was  not  waived  by  the  special  appearance 
of  counsel  for  him  to  move  the  dismissal  of  the  action  on  that 
ground,  or  what  we  consider  as  intended,  that  the  service  be  set 
aside;  nor,  when  that  motion  was  overruled,  by  their  answering 
for  him  to  the  merits  of  the  action.  Illegality  in  a  proceeding  by 
which  jurisdiction  is  to  be  obtained  is  in  no  case  waived  by  the 
appearance  of  the  defendant  for  the  purpose  of  calling  the  atten- 
tion of  the  court  to  such  irregularity ;  nor  is  the  objection  waived 
when  being  urged  it  is  overruled,  and  the  defendant  is  thereby 
compelled  to  answer.  He  is  not  considered  as  abandoning  his 
objection  because  he  does  not  submit  to  further  proceedings 
without  contestation.  It  is  only  where  he  pleads  to  the  merits  in 
the  first  instance,  without  insisting  upon  the  illegality,  that  the 
objection  is  deemed  to  be  waived.^ 


1  For  a  collection  of  the  cases  on 
this  point,  see  Corbett  v.  Casualty 
Co.,  16  L.  E.  A.  (N.  S.)  177  and 
note.  It  seems  that  at  common  law 
error  in  sustaining  a  demurrer  to  a 
plea  in  abatement  was  not  waived 
by  a  plea  in  bar  after  judgment  of 


respondeat  ouster.  Lockwood,  J.,  in 
Delahay  v.  Clement,  4  111.  201 
(1841):  "This  cause  was  decided 
at  the  last  December  term,  but  on  a 
petition,  this  Court,  at  the  present 
term,  granted  a  re-hearing.  The  pe- 
tition suggests  that  the  Court  mis- 


Sec.  2.] 


HARKNESS   V.    HYDE. 


101 


The  judgment  of  the  Supreme  Court  of  the  Territory,  there- 
fore, must  be  reversed,  and  the  case  remanded  with  directions  to 
reverse  the  judgment  of  the  District  Court  for  Oneida  County, 
and  to  direct  that  court  to  set  aside  the  service  made  upon  the 
defendant ;  and  it  is 

So  ordered. 


took  the  law,  by  deciding  "that 
where  a  demurrer  to  a  plea  in  abate- 
ment is  sustained,  if  the  defendant 
files  a  plea  in  bar,  he  thereby  waives 
his  plea  in  abatement. ' '  This  Court, 
in  the  case  of  McKinstry  v.  Pen- 
noyer  et  al.  (1  Scam.  319),  decided, 
that  "if  there  be  judgment  for  the 
plaintiff,  on  demurrer  to  a  plea  in 
abatement,  or  replication  to  such 
plea,  the  judgment  is  only  inter- 
locutory, quod  respondeat  ouster." 
Upon  the  principles  decided  in  that 
case,  it  is  the  order  and  judgment 
of  the  Court,  without  the  request  of 
the  defendant,  that  he  answer  over. 
In  complying  with  this  order,  it  is 
not  perceived  how  a  party  can  be 
said  to  abandon  his  plea,  or  waive 
his  right  to  a  correct  decision  upon 
his  plea.  The  Court  was  doubtless 
led  into  this  error  by  supposing  that 
the  defendant  below  stood  upon  the 
same  ground  as  a  party  who,  after 
his  plea  had  been  held  bad  on  de- 
murrer, asks  and  obtains  leave  of 
the  Court  to  amend  his  plea.  In 
this  case,  the  plea  is  considered  as 
abandoned.  So,  if  a  party  demurs 
to  a  pleading,  and  the  demurrer  is 
overruled,  and  he  obtains  leave  to 
withdraw  his  demurrer  and  plead 
or  reply,  the  demurrer  is  deemed  to 
be  waived.  In  both  of  these  cases, 
it  is  considered  the  act  of  the  party 
that  produces  the  result.  He  admits 
that  he  was  wrong,  and  he  should 
not  be  permitted  subsequently  to 
come  into  Court  and  insist  that  he 


was  right.  In  the  case  at  bar,  how- 
ever, there  is  no  such  admission. 
Consequently,  if  the  Court  decided 
the  defendant's  plea  in  abatement 
to  be  insuflS.cient,  when,  by  law,  it 
should  have  been  sustained,  he  has 
a  right  to  have  that  decision  re- 
viewed on  a  writ  of  error. ' ' 

And  so  in  Grand  Lodge  v.  Cramer, 
164  111.  9;  Gardner  v.  James,  5  E. 
I.  23.5. 

In  Pepper  v.  Whalley,  5  Nev.  & 
Man.  437  (1835),  after  judgment  of 
respondeat  ouster  on  demurrer  to 
a  plea  in  abatement,  the  defendant 
pleaded  in  bar,  and  on  the  issue 
there  was  a  verdict  for  plaintiff. 
Defendant  moved  in  arrest  because 
the  plea,  demurrer,  etc.,  were 
omitted  from  the  nisi  prius  record. 
The  Court  held  the  omission  proper 
under  the  Hilary  rules,  thus  chang- 
ing the  former  practice.  The  Ee- 
porter  added  the  following  note: 
' '  Unless  the  plea  in  abatement,  the 
demurrer  thereto,  and  the  joinder 
in  demurrer  and  the  judgment  of 
respondeat  ouster,  appeared  on  the 
judgment  roll,  the  defendant  would 
have  no  opportunity  of  insisting, 
before  a  Court  of  Error,  upon  the 
sufficiency  of  the  plea  in  abate- 
ment. Quaere,  as  to  the  mode  of 
effecting  this  since  the  new  rules. ' ' 
The  judgment  of  respondeat  ouster 
was  interlocutory  so  that  a  writ  of 
error  woidd  not  lie  directly.  Tidd  's 
Practice,  8th  Eng.  ed.  p.  1195. 


102  PROCESS.  [Chap.  I. 

ABBOTT  V.  SEMPLE. 

25  Illinois,  91.     [I860.]     ■ 

Mr.  Justice  Breese  delivered  the  opinion  of  the  court. 

The  first  point  made  in  this  ease,  that  of  the  legality  of  the 
special  October  term,  has  been  already  settled  in  the  case  of 
Mattingly  v.  Darwin,  23  111.  618.  We  there  held  that  such 
appointment  of  a  special  term  was  regular  and  in  conformity 
with  the  statute. 

It  is,  however,  contended  here,  that  admitting  the  legality  of 
the  special  term,  yet  one  of  the  defendants,  Lemon,  was  not 
summoned  at  all,  the  process  as  to  him  having  been  returned  not 
found.  We  have  often  said  service  of  process  is  unnece.ssary, 
if  the  party  appears,  appearance  being  the  object  of  process. 
When  that  is  effected  without  service,  as  by  a  regular  entry  of 
appearance  in  person,  or  by  attorney,  the  law  is  satisfied. 

This  record  shows  that  both  defendants  appeared  by  their 
attorneys,  and  joined  in  a  motion  to  quash  the  summons;  and, 
after  that  was  disposed  of,  the  record  shows  they  again  appeared 
and  entered  their  motion  for  a  new  trial,  and  that  they  also 
appeared  to  except  to  the  ruling  of  the  court  directing  the  order 
appointing  the  special  term  to  be  entered  on  the  record ;  and  also 
appeared  and  entered  their  motion  to  dismiss  the  case  for  want 
of  jurisdiction  of  the  persons  of  the  defendants,  they  not  having 
been  summoned  to  appear  at  the  special  October  term.  It  was 
at  no  time  objected  by  the  defendant  Lemon,  that  he  was  not 
served  at  all,  but  with  his  co-defendant  Abbott,  who  was  served, 
joined  in  the  motions  that  were  made.  Under  these  circum- 
stances we  must  hold  that  there  was  a  general  appearance  of 
both  these  defendants  for  all  purposes.  Frazier  v.  Resor,  23 
111.  88. 

When  a  party  only  appears  for  the  purpose  of  showing  he  is 
not  properly  before  the  court,  he  should  so  confine  it  in  his 
motion,  else  he  may  be  adjudged  to  have  appeared  for  all  pur- 
poses— that  his  appearance,  not  being  limited  to  a  specific  pur- 
pose, will  be  held  to  be  a  general  appearance. 

Judgment  affirmed. 


I 


Sec.  2.  ]  hurlburt  v.  palmer,  103 

HURLBURT  v.  PALMER. 

39  Nebraska,  158.     [1894.] 

In  this  action  under  the  Nebraska  Code,  the  defendant  had 
filed  an  answer  uniting  a  plea  to  the  merits  with  a  plea  to  the 
jurisdiction  on  the  ground  of  abuse  of  criminal  process  by  which 
service  was  obtained.  The  trial  court  excluded  proof  of  this  lat- 
ter defense  on  the  ground  that  the  answer  to  the  merits  amounted 
to  a  waiver.^ 

Ryan,  C.  (after  stating  the  case  in  detail).  *  *  *  These 
facts  present  for  our  determination  the  question  whether  or  not 
by  answering  as  one  defense  by  way  of  a  general  deniel  (modified 
perhaps  by  an  admission),  the  defendant  of  necessity  waived  his 
right  to  plead  as  a  separate  defense  such  facts  as  would  show  that 
jurisdiction  of  the  person  of  the  defendant  had  been  obtained,  if 
at  all,  by  fraud  and  abuse  of  the  process  of  the  court — the  facts 
above  offered  to  be  proved  leaving  no  room  for  a  milder  statement 
as  to  the  propositions  in  support  of  which  proof  was  tendered. 
It  is  greatly  to  be  regretted  that  the  adjudications  of  this  court 
upon  the  proposition  stated  furnish  apparent  authority  for  the 
contention  of  each  party.     *     *     * 

The  misapprehension  of  the  scope  of  former  decisions  of  this 
court  as  justifying  an  inference  of  w'aiver  as  to  the  question  of 
jurisdiction,  by  pleading  the  facts  defeating  it  in  connection  with 
other  matters  of  defense  by  way  of  answer,  required  the  review  by 
this  court  of  its  former  opinions  on  that  subject,  and  having 
found  that  this  court  had  not  gone  to  the  extreme  assumed,  it 
was  deemed  but  proper  to  notice  the  holdings  of  other  courts 
upon  the  same  subject.  Our  conclusion  is,  that  under  section 
99  of  the  Code  of  Civil  Procedure  it  is  proper  to  plead  as  a 
distinct  defense  such  facts  as  do  not  appear  in  the  record,  whereby 
it  is  made  known  that  the  court  has  no  jurisdiction  either  of 
the  person  or  the  subject-matter  of  the  action.  As  an  original 
question  it  would  seem  that  there  should  have  been  no  doubt  as 
to  this  proposition,  for  it  is  provided  in  section  94  of  the  Code 
of  Civil  Procedure,  among  other  provisions,  that  "the  defendant 
may  demur  to  the  petition  only  when  it  appears  on  its  face  either, 

1  Statement    has   been    condensed. 
—Ed. 


104  PROCESS.  [Chap.  I. 

first,  that  the  court  has  no  jurisdiction  of  the  person  of  the 
defendant  or  the  subject  of  the  action,"  etc.  In  the  same  Code 
it  is  provided  as  follows  by  section  96:  "When  any  of  the 
defects  enumerated  in  section  94  do  not  appear  upon  the  face 
of  the  petition,  the  objection  may  be  taken  by  answer,  and  if  no 
objection  be  taken  either  by  demurrer  or  answer,  the  defendant 
shall  be  deemed  to  have  waived  the  same, ' '  etc.  By  this  section 
it  is  expressly  provided  that  the  failure  to  make  objection  by 
answer,  where  the  defect  does  not  appear  upon  the  face  of  the 
petition,  shall  be  deemed  a  waiver  of  such  defect ;  that  is  to  say, 
the  failure  to  raise  by  answer  the  question  of  jurisdiction,  arising 
as  it  did  in  this  case,  must  be  deemed  a  waiver  of  all  objections 
on  that  score.  It  is  a  harsh  and  unnatural  construction,  and  one 
in  direct  contravention  of  the  provisions  of  this  section,  to  hold 
that  by  taking  objections  to  jurisdiction  in  the  manner  provided 
thereby,  the  defendant  waives  the  very  objections  he  shall  be 
deemed  to  have  waived  unless  he  proceeds  in  that  very  manner. 
In  view  of  all  the  considerations  to  which  attention  has  been 
challenged,  we  conclude  that  the  District  Court  erred  in  sustain- 
ing the  objections  made  to  the  evidence  offered  for  the  purpose 
of  showing  that  the  court  had  no  jurisdiction  of  the  persons  of 
the  plaintiffs  in  error.^ 


GRANTIER  v.  ROSECRANCE. 

27  Wisconsin,  488.     [1871.] 

Appeal  from  an  order  setting  aside  a  judgment  by  default  and 
vacating  the  service. 

Cole,  J.  There  can  be  no  doubt  that  the  record  failed  to  show 
any  legal  service  of  the  summons  in  the  action ;  and  had  not  this 
defect  been  waived  by  the  appearance  of  the  defendant  Rose- 

2  Accord:     Allen     v.     Miller,     11  diction  may  be  joined  with  a  plea 

Ohio  St.  374;   Hapgood  v.  Dial,  43  in  bar,  but  the  objection  to  jurisdic- 

Tex.  625;  Telephone  Co.  v,  Beeler,  tion  of  the  person  will  be  waived, 

125   Ky.    366 ;    Johnson   v.   Detrick,  if  it  should  have  been  taken  by  mo- 

152    Mo.    243.     But   see   Corbett   v.  tion  instead   of  plea.      Newcomb  v. 

Casualty  Co.,  135  Wis.  505.  Ry.,   182   Mo.   687. 

In  Missouri,  a  plea  to  the  juris- 


Sec.  2.  ]  mc  abthur  v.  lefpler.  105 

crance,  the  order  appealed  from  would  have  to  be  affirmed.  But 
he,  by  his  attorneys,  moved  the  court  to  set  aside  the  judgment 
upon  several  grounds,  one  of  which  was  the  following:  "4th. 
Because  the  complaint  in  this  action  does  not  state  a  cause  of 
action  against  the  defendant  Martin  Rosecrance."  Coming  into 
court  and  moving  that  the  judgment  be  set  aside  upon  such  a 
ground  was  a  general  appearance  in  the  cause,  and  cured  all 
irregularity  in  the  service  of  process.  It  is  true  the  notice  states 
that  the  defendant  appears  "specially"  for  the  purpose  of  set- 
ting aside  the  judgment;  and  had  he  limited  the  motion  solely 
to  the  defects  in  the  service  of  the  summons,  the  appearance 
would  have  been  a  qualified  one.  But  he  did  not  ask  to  have  the 
judgment  vacated  for  that  reason  alone,  but  because  the  com- 
plaint did  not  state  a  cause  of  action  against  him.  This  was  a 
full  submission  to  the  jurisdiction  of  the  court,  and  was  a  general 
appearance.  It  is  substantially  the  same  as  though  he  had  come 
into  court  before  judgment  was  entered,  and  demurred  to  the 
complaint  upon  the  ground  that  it  stated  no  cause  of  action.  He 
expressly  asked  the  court,  in  his  motion,  to  review  the  complaint, 
and  to  vacate  the  judgment  because  the  complaint  was  fatally 
defective.  It  is  difficult  to  conceive  how  a  more  full  or  general 
appearance  could  be  made,  so  far  as  the  jurisdiction  over  the 
person  of  the  defendant  Rosecrance  was  concerned.  He  must 
be  held  to  have  waived  all  defects  and  irregularities  in  the  service 
of  the  summons  upon  him.  Stonach  v.  Glessner,  4  Wis.  275; 
Barnum  v.  Fitzpatrick,  11  id.  81 ;  Tallman  v.  McCarthy,  id.  401 ; 
Upper  Transportation  Co.  v.  Whittaker,  16  id.  220 ;  Conger  v. 
C.  &  G.  U.  R.  R.,  17  id.  477 ;  Cron  v.  Krones,  id.  401. 

By  the  Court:  The  order  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded  with  directions  to  reinstate  the  judg- 
ment.^ 


McARTHUR  v.  LEFFLER. 

110  Indiana,  526.     [1886. ^ 

In  the  original  action  of  Leffler  v.  McArthur,2  there  was  a 
return  of  non  est,  and  an  affidavit  for  an  order  of  publication,  at 

1  But  see  Godfrey  v.  Valentine,  39  ~  Statement  has  been  condensed. 

Minn.  36;  Jones  v.  Bird,  74  111.  115. 


106  '  PROCESS.  "  [Chap.  I. 

which  stage  of  the  proceedings  the  attorneys  for  IMcArthur  filed 
a  demurrer  to  the  complaint  and  obtained  a  change  of  venue  to 
Pulaski  County ;  the  latter  court  granted  leave  to  withdraw  the 
appearance  and  demurrer,  and  thereafter  judgment  by  default 
was  entered.  McArthur  then  brought  the  present  suit  under  the 
Indiana  statute  to  review  the  default  judgment.  A  demurrer 
was  sustained  to  the  complaint  and  the  plaintiff  appealed. 

HowK,  J.  Did  the  court  err  in  sustaining  appellee's  demurrer 
to  appellant's  complaint  for  review,  the  substance  of  which  we 
have  given?  We  are  of  opinion  tliat  this  question  ought  to  be, 
and  must  be,  answered  in  the  affirmative.  It  may  be  conceded 
that,  upon  the  facts  stated  in  such  complaint,  if  the  appellee  had 
objected  to  the  withdrawal  of  appellant's  appearance  in  the 
original  action,  it  would  have  been  error  to  have  overruled  such 
objection,  and  to  have  permitted  such  appearance  to  be  with- 
drawn. Indeed,  upon  the  facts  stated,  it  would  have  been  com- 
petent for  the  court  in  its  own  discretion,  without  any  objection 
on  the  part  of  the  appellee,  to  have  denied  the  leave  recpested 
for  the  withdrawal  of  appellant's  appearance. 

Thus,  in  Young  v.  Dickey,  63  Ind.  31,  the  court  said:  "Per- 
hajDS,  when  a  defendant  appears  to  an  action  without  process  and 
service,  the  court  would  not  allow  him  to  withdraw  his  appearance 
over  the  objection  of  the  plaintiff,  or,  at  least,  in  such  a  case,  it 
would  be  within  the  judicial  discretion  of  the  court  to  allow,  or 
not  to  allow,  his  withdrawal,  according  to  the  merits  of  the 
question."     New  Albany,  etc.,  R.  R.  Co.  v.  Combs,  13  Ind.  490. 

"According  to  the  merits  of  the  question,"  as  presented  by  the 
facts  stated  in  appellant 's  complaint  in  the  case  under  considera- 
tion, we  think  the  court  below  would  have  been  fully  authorized 
in  the  exercise  of  its  discretion,  with  or  without  objection  on  the 
part  of  the  appellee,  to  refuse  to  allow  the  withdrawal  of 
appellant's  appearance.  For  it  was  clearly  shown  by  the  aver- 
ments of  his  complaint  that  the  appellant,  by  his  counsel,  not 
only  appeared  fully  to  the  original  action  and  filed  his  demurrer 
to  the  complaint  therein,  in  the  Starke  Circuit  Court,  but  that  he 
there  applied  for  and  obtained,  upon  the  affidavit  of  one  of  his 
counsel,  a  change  of  venue  to  the  Pulaski  Circuit  Court. 

Upon  this  state  of  the  record,  it  seems  to  us  that  the  court 
beloAv,  except  for  good  cause  shown,  ought  to  have  promptly 
denied  or  overruled  the  motion  of  appellant's  counsel  for  leave 
to  withdraw  their  appearance  for  him.     But  the  court  sustained 


Sec.  2.]  mc  Arthur  v.  leffler.  107 

the  motion  of  counsel,  and  allowed  them  to  withdraw  not  only 
their  appearance  for  appellant,  but  also  his  demurrer  to  the 
complaint  and  his  other  papers,  in  the  original  cause.  It  is 
shown  by  the  averments  of  appellant 's  complaint  herein,  admitted 
to  be  true  by  appellee's  demurrer  thereto,  that  the  court  below, 
two  days  after  the  withdrawal  of  appellant's  appearance  and 
papers,  attempted  to  amend  its  previous  orders  so  as  to  show 
that  the  leave  to  withdraw  appearance  was  granted,  but  that  the 
leave  to  withdraw  demurrer  and  other  papers  was  denied.  But 
this  attempted  amendment  did  not  change  the  previous  order, 
in  legal  effect. 

It  has  always  been  held  by  this  court  that  the  withdrawal  of  a 
defendant's  appearance  in  a  cause,  of  itself,  effects  the  with- 
drawal of  all  his  pleadings  therein.  Thus,  in  the  early  ease  of 
Carver  v.  Williams,  10  Ind.  267,  the  court  said:  "If  a  party 
appears  to  a  suit  and  pleads,  and  then  simply  fails  to  appear  at 
the  trial,  his  pleadings  stand.  But  if,  after  pleading,  he  comes 
and  withdraws  his  appearance  to  the  suit,  which,  by  leave  of 
the  court,  he  may  do,  his  pleadings  go  with  his  appearance." 
What  was  there  said  has  been  quoted  with  approval  and  fol- 
lowed in  many  of  our  subsequent  decisions.  Sloan  v.  A¥ittbank, 
12  Ind.  444;  Smith  v.  Foster,  59  Ind.  595;  Young  v.  Dickey, 
supra ;  Gunel  v.  Cue,  72  Ind.  34 ;  Love  v.  Hall,  76  Ind.  326. 

Appellant's  appearance  to  appellee's  action  having  been  with- 
drawn, with  leave  of  the  court  first  had,  and  it  not  appearing 
that  he  had  afterwards  appeared  therein  either  in  person  or 
by  attorney,  of  course  it  was  not  competent  for  either  the  court 
or  the  appellee  to  take  any  further  proceedings  against  appellant 
in  such  cause,  until  after  proof  had  been  duly  made  of  the  issue 
and  service  on  him  of  process  issued  therein.  No  such  proof  of 
the  issue  and  service  of  process  was  made,  or  attempted  to  be 
made  in  the  original  cause,  and,  therefore,  the  court  below  clearly 
erred  in  calling  and  defaulting  appellant  therein,  and  in  render- 
ing judgment  against  him  upon  such  default.  Thus,  in  Dunkle 
V.  Elston,  71  Ind.  585,  which,  like  the  case  we  are  now  con- 
sidering, was  a  suit  for  the  review  of  a  judgment  for  errors  of 
law  apparent  in  the  record,  the  court  said :  "The  withdrawal  of 
appearance  for  the  defendants  by  *  *  *  their  attorneys, 
took  with  it  the  answers  of  the  defendants.  Young  v.  Dickey, 
63  Ind.  31.  And  a  judgment  by  default  w^as  therefore  proper, 
if  the  defendants  had  been  duly  served  with  process." 


108  PROCESS.  [Chap.  I. 

In  the  ease  at  bar,  as  we  have  seen,  one  of  the  errors  of  law- 
apparent  in  the  record  of  the  judgment  sought  to  be  reviewed 
was  that  appellant  had  not  been  duly  served  with  process  in  the 
original  cause,  and  from  this  error  of  law  it  followed  of  neces- 
sity that  the  judgment  by  default  against  him  therein  was  im- 
proper, erroneous,  and  wholly  unauthorized  by  law. 

We  are  of  opinion,  therefore,  that  the  court  clearly  erred  in 
sustaining  appellee's  demurrer' to  appellant's  complaint  herein 
for  the  review  and  reversal  of  the  judgment  against  him  described 
therein. 

The  judgment  is  reversed  with  costs,  and  the  cause  is  remanded, 
with  instructions  to  overrule  the  demurrer  to  the  complaint,  and 
for  further  proceedings  not  inconsistent  with  this  opinion.^ 


(d)   The  service  required  in  various  actions. 

BECQUET  V.  MacCARTHY. 

2  Barnewall  &  Adolpkus.  951.     [1831.] 

Lord  Tenterden,  C.  J.,  now  delivered  the  judgment  of  the 
court. 

This  was  an  action  brought  upon  a  judgment  recovered  in  the 
Island  of  Mauritius.     That  island,  at  the  time  of  the  suit  in 

1  Accord :  Graham  v.  Spence,  14  court  in  the  case  are  as  valid  and 
Fed.  603.  But  see  Dart  v.  Hercules,  binding  as  if  the  process  was  regu- 
34  111.  395,  in  which  Walker,  C.  J.,  lar  and  the  service  unobjectionable, 
said:  "The  only  purpose  of  original  By  filing  a  plea  in  bar  a  full  ap- 
process  is  to  bring  parties  into  court.  pearance  was  entered,  which  was 
And  when  the  defendant  enters  his  not  withdrawn  by  withdrawing  the 
appearance,  the  object  is  accora-  plea.  After  it  was  withdrawn,  the 
plished,  and  it  is  not  material  appearance  still  remaining,  plain- 
whether  the  summons  issued  in  the  tiff  below  was  entitled  to  judgment 
case  was  defective  or  not,  or  even  nil  dicit,  at  any  time  before  another 
whether  it  is  ever  issued.  By  an  plea  was  filed." 
appearance  to  the  action,  the  court  And  so  in  Eldred  v.  Bank,  17 
acquires  jurisdiction  of  the  person  Wall.  545;  Creighton  v.  Kerr,  87 
of  defendant  as  fully  as  it  can  be  U.  S.  8.  Where  the  appearance  of  a 
had  by  summons,  with  proper  serv-  non-resident  has  been  entered  with- 
ies. When  he  appears  in  the  case  out  authority,  that  fact  may  be  set 
it  is  an  admission  that  he  has  been  up  as  a  defense  to  the  judgment, 
duly  served,  or  that  he  waives  serv-  Sheldon  v.  GrifEji,  6  How.  (U.  S.) 
ice;   and  all  the  proceedings  of  the  162. 


Sec.  2.]  becquet  v.  mac  carthy.  109 

which  the  judgment  was  given,  belonged  to  the  sovereign  of  this 
country,  but  the  French  law  then  prevailed  there.  The  judgment 
was  recovered  by  a  person  whose  premises  had  been  destroyed 
by  fire  which  began  in  the  premises  belonging  to  or  occupied  by 
the  testator,  at  that  time  deputy  paymaster  of  the  forces  in  the 
island.  Among  other  objections  taken  to  the  validity  of  this 
judgment,  one  was,  that  supposing  the  court  to  have  proceeded 
upon  the  article  1384  of  the  Code  Civil,  and  taking  it  for  granted 
that  the  fire  originated  in  premises  occupied  by  the  testator,  still 
that  was  not  sufficient  to  make  him  liable,  because  the  fire  might 
have  begun  without  the  fault  of  the  testator  or  any  of  his 
servants.  The  law  of  France  being  the  law  of  the  colony  at  the 
time  when  the  judgment  was  pronounced,  the  French  court  was 
much  more  competent  to  decide  questions  arising  upon  that  law 
than  we  can  be.     *     *     * 

Another  objection,  and  not  an  unimportant  one,  was,  that  the 
testator,  when  the  proceedings  were  instituted  against  him,  was 
absent  from  the  island;  and  it  was  urged,  that  it  was  contrary 
to  the  principles  of  natural  justice  that  any  one  should  be  con- 
demned unheard,  and  in  his  absence.  Proof,  however,  was  given 
that  by  the  law  of  the  colony,  in  the  case  of  a  person  formerly 
resident  in  the  island,  absenting  himself,  and  not  leaving  any 
attorney  upon  whom  process  in  a  suit  might  be  served,  the 
procurator-general  or  his  deputy  was  bound  to  take  care  of  the 
interests  of  such  absent  party.  It  was  said  that  the  law  of  the 
island  did  not  provide  any  means  whereby  the  procurator-general 
or  his  deputy  might  be  required  to  hold  communication  with, 
or  receive  directions  from  an  absent  person.  There  may,  per- 
haps, be  some  deficiency  in  the  law  in  that  respect;  but  as  the 
law  of  the  island  is,  that  the  process  shall  be  served  upon  the 
public  officer,  it  must  be  presumed  that  he  would  do  whatever 
was  necessary  in  the  discharge  of  that  public  duty;  and  we 
cannot  take  upon  ourselves  to  say  that  the  law  is  so  contrary 
to  natural  justice  as  to  render  the  judgment  void  in  a  case  where 
the  process  was  so  served.^  For  these  reasons  we  are  of  opinion, 
that  the  rule  for  a  new  trial  .should  be  discharged. 

Kide  discharged. 

1  In  Sirdar  Gurdial  Singh  v.  to  extend  the  rule  to  the  case  of  a 
Rajah  of  Faridkote,  (1894)  App.  foreigner  who  had  returned  to  his 
Cases,  670  the  Privy  Council  refused       home   state   before    action   brought. 


110  PROCESS.  [Chap.  I. 

SMITH  V.  GRADY. 

68  Wisconsin,  215.     [1887.] 

Appeals  from  the  Circuit  Court  for  Chippewa  County. 

The  plaintiff  duly  presented  to  the  Chippewa  County  Court 
for  allowance  their  verified  claim  against  the  estate  of  Patrick 
O'Donnel,  the  defendant's  testator,  founded  upon  a  judgment 
recovered  by  them  in  the  County  Court  of  the  county  of  Peter- 
borough, in  the  Province  of  Ontario  and  Dominion  of  Canada, 
against  the  testator  in  his  lifetime.  The  Chippewa  County  Court 
disallowed  the  claim,  whereupon  the  plaintiffs  appealed  to  the 
Circuit  Court.  The  Circuit  Court  also  disallowed  it,  and  from 
the  judgment  of  disallowance  the  plaintiffs  have  appealed  to  this 
court. 

A  duly  exemplified  copy  of  the  judgment  roll  in  the  Ontario 
court,  including  the  judgment,  was  offered  in  evidence  by  the 
plaintiffs,  from  which  it  appears  that  the  action,  which  was  com- 
menced by  a  writ  of  summons,  was  a  personal  action  against  the 
defendant  for 'services  as  solicitors  alleged  to  have  been  rendered 
him  in  Ontario  by  the  plaintiff's;  that  the  only  service  of  such 
process  upon  the  testator  was  made  upon  him  personally  in  the 
county  of  Chippewa  in  this  state,  and  that  he  made  no  appear- 
ance in  the  action.  It  also  sufficiently  appears,  by  a  stipulation 
of  facts  made  in  the  case  and  otherwise,  that  the  testator  resided 
in  Ontario  and  was  a  subject  of  Great  Britain  when  he  became 
indebted  to  the  plaintiffs;  that  he  continued  such  subject  until 
his  death;  that  he  was  not  a  resident  of  Ontario  and  had  no 
property  therein  when  process  was  served  upon  him,  or  after- 
wards ;  that  all  the  proceedings  in  the  Ontario  action,  including 
the  service  of  process  in  this  state  are  regular  under  the  laws  of 
Ontario,  and  that  the  judgment  is  authorized  by  such  laws ;  also 
that  the  Peterborough  County  Court  is  a  court  of  record  having 
jurisdiction  of  such  actions.     *     *     * 

Lyon,  J.  The  only  question  which  the  first  appeal  herein  pre- 
sents for  determination  is,  Did  the  service  of  process  in  this  state 
upon  Patrick  O'Donnel,  the  defendant's  testator,  give  the  On- 
tario court  jurisdiction  of  his  person,  so  as  to  make  valid  its 
personal  judgment  against  him,  based  entirely  upon  such  serv- 
ice? "Whatever  validity  such  judgment  may  have  in  Ontario  or 
Canada  under  the  laws  of  that  province  or  dominion,  in  this 


Sec.  2.]  goldey  v.  morning  news.  Ill 

country  the  authorities  are  very  uniform  that  a  personal  judg- 
ment, founded  alone  upon  service  of  process  in  another  state  or 
foreign  country,  is  void.  Many  of  the  cases  which  so  hold  are 
cited  in  the  brief  of  counsel  for  the  defendant.  Of  these  McEwan 
v.  Zimmer,  38  Mich.  765,  is  worthy  of  special  notice.  See  also 
Bischoff  V.  Wethered,  9  Wall.  812. 

But  it  is  not  necessary  to  look  elsewhere  for  doctrine  or  author- 
ity on  this  question,  for  this  court  ruled  upon  the  subject  many 
years  ago  in  Jarvis  v.  Barrett,  14  Wis.  591.  The  question  was 
there  settled  and  further  discussion  of  it  foreclosed  in  the  follow- 
ing terms:  "It  is  a  universally  acknowledged  principle  that 
jurisdiction  cannot  be  acquired  or  exercised  over  persons  or 
property  without  the  territorial  limits  of  the  government  where 
the  court  sits,  and  that  the  legislature  possesses  no  power  to 
grant  it.  It  can  only  be  obtained  of  persons  and  property  within 
the  territory  so  as  to  be  subjected  to  the  process  of  the  court. 
Jurisdiction  of  a  defendant  cannot  be  acquired  so  as  to  bind  him 
personally,  except  by  his  voluntary  appearance,  or  by  due  serv- 
ice of  process  within  the  state,  and  service  out  of  the  state  is 
utterly  nugatory  and  void  for  that  purpo.se. ' '  ^ 

The  claim  against  the  estate  of  the  testator  being  upon  the 
void  judgment  alone,  it  was  properly  disallowed  both  by  the 
county  and  circuit  courts. 

By  the  court.    The  judgment  of  the  Circuit  Court  is  affirmed. 


GOLDEY  V.  MORNING  NEWS. 

156  United  States,  518.     [1894.] 

This  was  an  action  for  a  libel,  claiming  damages  in  the  sum  of 
$100,000  brought  in  the  Supreme  Court  of  the  State  of  New 
York  for  the  county  of  Kings,  by  Catherine  Goldey,  a  citizen 
of  the  State  of  New  York,  against  the  Morning  News  of  New- 
Haven,  a  corporation  organized  and  existing  under  the  laws  of 
the  State  of  Connecticut,  and  carrying  on  business  in  that  state 

1  Accord:  Grabel  v.  Massauer,  210 
N.  Y.  149  (notice  by  publication). 


112  PROCESS.  [Chap.  I. 

only,  and  having  no  place  of  business,  officer,  agent  or  property 
in  the  State  of  New  York. 

The  action  was  commenced  January  4,  1890,  by  personal 
service  of  the  summons  in  the  city  and  State  of  New  York  upon 
the  president  of  the  corporation,  temporarily  there,  but  a  citizen 
and  resident  of  the  State  of  Connecticut;  and  on  January  24, 
1890,  upon  the  petition  of  the  defendant,  appearing  by  its  attor- 
ney specially  and  for  the  sole  and  single  purpose  of  presenting 
the  petition  for  removal,  was  removed  into  the  Circuit  Court  of 
the  United  States  for  the  Eastern  District  of  New  York,  because 
the  parties  were  citizens  of  different  states,  and  the  time  within 
which  the  defendant  was  required  by  the  laws  of  the  State  of 
New  York  to  answer  or  plead  to  the  complaint  had  not  expired. 

In  the  Circuit  Court  of  the  United  States,  the  defendant,  on 
February  5,  1890,  appearing  by  its  attorney  specially  for  the 
purpose  of  applying  for  an  order  setting  aside  the  summons  and 
the  service  thereof,  filed  a  motion,  supported  by  affidavits  of  its 
president  and  oi  its  attorney  to  the  facts  above  stated,  to  set 
aside  the  summons  and  the  service  thereof,  upon  the  ground 
"that  the  said  defendant,  being  a  corporation  organized  under 
the  laws  of  the  State  of  Connecticut,  where  it  solely  carries  on 
its  business,  and  transacting  no  business  within  the  State  of  New 
York,  nor  having  any  agent  clothed  with  authority  to  represent 
it  in  the  State  of  New  York,  cannot  legally  be  made  a  defendant 
in  an  action  by  a  service  upon  one  of  its  officers  while  temporarily 
in  said  State  of  New  York."  Thereupon  that  court,  after  hear- 
ing the  parties  on  a  rule  to  show  cause  why  the  motion  should 
not  be  granted,  '  *  ordered  that  the  service  of  the  summons  herein 
be,  and  the  same  is  hereby,  set  aside  and  the  same  declared  to 
be  null  and  void  and  of  no  effect,  and  the  defendant  is  hereby 
relieved  from  appearing  to  plead  in  answer  to  the  complaint  or 
otherwise  herein. "  42  Fed.  Rep.  112.  The  plaintiff  sued  out  this 
writ  of  error.i 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

This  writ  of  error  presents  the  question  whether,  in  a  personal 
action  against  a  corporation  which  neither' is  incorporated  nor 
does  business  within  the  state,  nor  has  any  agent  or  property 

1  For  that  part  of  the  opinion 
dealing  with  the  question  of  special 
appearance,  see  ante  p.  93. 


Sec.  2.]  goldey  v.  morning  news.  113 

therein,  service  of  the  summons  upon  its  president,  temporarily 
within  the  jurisdiction,  is  sufficient  service  upon  the  corpora- 
tion. 

The  defendant  in  error  has  interposed  a  preliminary  objection 
that  the  judgment  of  the  Circuit  Court  upon  this  question  can- 
not be  reviewed,  because  of  the  provision  of  the  statutes,  that 
there  shall  be  no  reversal  in  this  court  upon  a  writ  of  error  ' '  for 
error  in  ruling  any  plea  in  abatement,  other  than  a  plea  to  the 
jurisdiction  of  the  court."  Rev.  Stat.  §1011,  as  amended  by 
Act  of  February  18,  1875,  ch.  80,  18  Stat.  318.  But  that  pro- 
vision, which  has  been  part  of  the  judiciary  acts  of  the  United 
States  from  the  beginning,  has  never  been,  and  in  our  opinion 
should  not  be,  construed  as  forbidding  the  review  of  a  decision, 
even  on  a  plea  in  abatement,  of  any  question  of  the  jurisdiction 
of  the  court  below  to  render  judgment  against  the  defendant, 
though  depending  on  the  sufficiency  of  the  service  of  the  writ. 
Act  of  September  24,  1789,  c.  20,  §  22,  1  Stat.  85 ;  Pollard  v. 
Dwight,  4  Cranch,  421 ;  Harkness  v.  Hyde,  98  U.  S.  476 ;  Mexican 
Central  Railway  v.  Pinkney,  149  U.  S.  194. 

Upon  the  question  of  the  validity  of  such  a  service  as  was  made 
in  this  case,  there  has  been  a  difference  of  opinion  between  the 
courts  of  the  State  of  New  York  and  the  Circuit  Courts  of  the 
United  States.  Such  a  service  has  been  held  valid  by  the  Court 
of  Appeals  of  New  York.  Hiller  v.  Burlington  &  Missouri  Rail- 
road, 70  N.  Y.  223 ;  Pope  v.  Terre  Haute  Co.,  87  N.  Y.  137.  It 
has  been  held  invalid  by  the  Circuit  Court  of  the  United  States 
held  within  the  State  of  New  York :  Good  Hope  Co.  v.  Railway 
Barb  Fenceing  Co.,  23  Blatchford,  43 ;  Goldey  v.  Morning  News, 
42  Fed.  Rep.  112;  Clews  v.  Woodstock  Co.,  44  Fed.  Rep.  31; 
Bentlif  v.  London  &  Colonial  Corporation,  44  Fed.  Rep.  667; 
American  Wooden  Ware  Co.  v.  Stem,  63  Fed.  Rep.  676 ;  as  well 
as  in  other  circuits.  Elgin  Co.  v.  Atchison,  etc.,  Railway,  24 
Fed.  Rep.  866 ;  United  States  v.  American  Bell  Tel.  Co.,  29  Fed. 
Rep.  17 ;  Carpenter  v.  Westinghouse  Co.,  32  Fed.  Rep.  434 ;  St. 
Louis  Co.  V.  Consolidated  Barb  Wire  Co.,  32  Fed.  Rep.  802; 
Reifsnider  v.  American  Publishing  Co.,  45  Fed.  Rep.  433 ;  Fidel- 
ity Co.  V.  Mobile  Railway,  53  Fed.  Rep.  850.  It  becomes  neces- 
sary, therefore,  to  consider  the  question  upon  principle,  and  in 
the  light  of  the  previous  decisions  of  this  court. 

It  is  an  elementary  principle  of  jurisprudence,  that  a  court  of 
justice  cannot  acquire  jurisdiction  over  the  person  of  one  who 


114 


PROCESS. 


[Chap.  I. 


has  no  residence  within  its  territorial  jurisdiction,  except  by 
actual  service  of  notice  within  the  jurisdiction  upon  him  or  upon 
some  one  authorized  to  accept  service  in  his  behalf,  or  by  his 
waiver,  by  general  appearance  or  otherwise,  of  the  want  of  due 
service.  Whatever  effect  a  constructive  service  may  be  allowed 
in  the  courts  of  the  same  government,  it  cannot  be  recognized  as 
valid  by  the  courts  of  any  other  government.  D'Arcy  v. 
Ketchum,  11  How.  165 ;  Knowles  v.  Gaslight  Co.,  19  Wall.  58 : 
Hall  V.  Lanning,  91  U.  S.  160 ;  Pennoyer  v.  Neff,  95  U.  S.  714 : 
York  V.  Texas,  137  U.  S.  15 ;  Wilson  v.  Seligman,  144  U.  S.  41. 

For  example,  under  the  provisions  of  the  Constitution  of  the 
United  States  and  of  the  acts  of  Congress,  by  which  judgments 
of  the  courts  of  one  state  are  to  be  given  full  faith  and  credit  in 
the  courts  of  another  state,  or  of  the  United  States,  such  a  judg- 
ment is  not  entitled  to  any  force  or  effect,  unless  the  defendant 
was  duly  served  with  notice  of  the  action  in  which  the  judgment 
was  rendered,  or  waived  the  want  of  such  notice.  Constitution, 
art.  4,  §  1 ;  Acts  of  May  26,  1790,  c.  11,  1  Stat.  122,  and  March 
27,  1804,  c.  56,  2  Stat.  299,  Eev.  Stat.  §  905 ;  Knowles  v.  Gas- 
light Co.,  and  Pennoyer  v.  Neff,  above  cited. 

*  *  *  So  a  judgment  rendered  in  a  court  of  one  state 
against  a  corporation  neither  incorporated  nor  doing  business 
within  the  state  must  be  regarded  as  of  no  validity  in  the  courts 
of  another  state  or  of  the  United  States,  unless  service  of  process 
was  made  in  the  first  state  upon  an  agent  appointed  to  act  there 
for  the  corporation,  and  not  merely  upon  an  officer  or  agent 
residing  in  another  state,  and  only  casually  within  the  state,  and 
not  charged  with  any  business  of  the  corporation  there.  La- 
fayette Ins.  Co.  V.  French,  18  How.  404 ;  St.  Clair  v.  Cox,  106 
U.  S.  350,  357,  359 ;  Fitzgerald  Co.  v.  Fitzgerald,  137  U.  S.  98, 
106;  Mexican  Central  Eailway  v.  Pinkney,  149  U.  S.  194;  In  re 
Hohorst,  150  U.  S.  653,  663. 

The  principle  which  governs  the  effect  of  judgments  of  one 
state  in  the  courts  of  another  state  is  equally  applicable  in  the 
Circuit  Courts  of  the  United  States,  although  sitting  in  the  state 
in  which  the  judgment  was  rendered.  In  either  case,  the  court 
the  service  of  whose  process  is  in  question,  and  the  court  in  which 
the  effect  of  that  service  is  to  be  determined,  derive  their  juris- 
diction and  authority  from  different  governments.  Pennoyer  v. 
Neff,  95  U.  S.  714,  732,  733. 

For  the  same  reason,  service  of  mesne  process  from  a  court  of 


Sec.  2.]  dillon  v.  heller.  115 

a  state,  not  made  upon  the  defendant  or  his  authorized  agent 
within  the  state,  although  there  made  in  some  other  manner  rec- 
ognized as  valid  by  its  legislative  acts  and  judicial  decisions, 
can  be  allowed  no  validity  in  the  Circuit  Court  of  the  United 
States  after  the  removal  of  the  case  into  that  court,  pursuant  to 
the  acts  of  Congress,  unless  the  defendant  can  be  held,  by  virtue 
of  a  general  appearance  or  otherwise,  to  have  waived  the  defect 
in  the  service,  and  to  have  submitted  himself  to  the  jurisdiction 
of  the  court.2 


DILLON  V.  HELLER. 

39  Kansas,  599.     [1888.] 

Plaintiff  brought  suit  under  the  code  against  the  defendant, 
a  non-resident,  to  quiet  title  to  a  tract  of  land,  and  obtained 
service  by  publication.  The  defendant  entered  a  special  appear- 
ance and  moved  to  quash  for  lack  of  jurisdiction.  This  motion 
was  overruled  and  judgment  entered  by  default.  The  defendant 
sued  out  the  present  writ  of  error.^ 

Valentine,  J.  The  plaintiff  in  error,  who  was  defendant  be- 
low, claims  that  the  court  below  erred  in  the  following  partic- 
ulars and  for  the  following  reasons,  to-wit : 

"1.  That  service  of  summons  by  publication  in  actions  to 
'quiet  title'  is  not  sufficient  to  give  the  court  jurisdiction  of  the 
party  defendant. 

"2.  That  the  court,  not  having  jurisdiction  of  the  party  de- 
fendant, cannot  pronounce  judgment  in  the  matter. 

"3.  That  the  service  by  publication  is  null  and  void  and  of 
no  effect  because  it  does  not  run  in  the  name  or  style  of  'The 
state  of  Kansas.' 

"4.  That  the  service  by  publication  is  null  and  void  for  the 
reason  that  it  is  not  dated  of  the  day  and  date  issued. 

"5.  That  the  affidavit  to  secure  service  by  publication  is  wholly 
insufficient  to  base  a  service  by  publication  upon. 

2  See  also  Latimer  v.  Ey.,  43  Mo.  For  the  contrary  view,  see   Pope 

105    (suit  on   a   judgment  rendered       v.  Mfg.  Co.,  87  N.  Y.  137. 
in  N.  Y.  on  the  same  state  of  facts).  i  Statement  has  been  condensed. 


116 


PROCESS. 


[Chap.  I. 


"6.  That  the  judgment  is  void  and  null  for  the  reason  that  it 
was  obtained  without  any  evidence  whatever. ' ' 

"While  the  plaintiff  in  error  does  not  in  terms  claim  that  a 
court  cannot  in  any  case  where  the  defendant  is  a  non-resident 
and  out  of  the  state,  obtain  jurisdiction  to  hear  and  determine 
the  case  by  virtue  of  a  service  of  summons  only  by  publication, 
yet  such  is  the  result  of  his  argument ;  and  in  support  of  such 
argument  he  cites  a  number  of  authorities,  the  principal  of  which 
is  the  case  of  Hart  v.  Sansom,  110  U.  S,  151.  We  do  not  think, 
however,  that  the  authorities  cited  go  to  the  extent  claimed  for 
them.  Of  course  a  court  cannot  obtain  jurisdiction  of  the  per- 
son of  a  non-resident  defendant  by  means  only  of  a  service  of 
summons  by  publication,  nor  can  the  court  obtain  jurisdiction  of 
the  person  of  any  person  who  is  a  non-resident  and  out  of  the 
state,  by  any  kind  of  service,  or  by  any  kind  of  process  or  notice ; 
for  the  jurisdiction  of  the  courts  of  any  sovereignty  can  never 
extend  beyond  the  domain  of  the  sovereignty  which  creates  them. 
(Amsbaugh  v.  Exchange  Bank,  33  Kkns.  100,  105.)  No  court  in 
Kansas  can  compel  a  non-resident  defendant  out  of  the  state  to 
come  within  its  territorial  boundaries,  or  to  submit  himself  to 
its  jurisdiction,  or  to  do  or  perform  any  other  act  or  thing;  but 
this  lack  of  power  on  the  part  of  the  court  does  not  depend  upon 
the  character  of  the  service  of  process  made  upon  the  defendant, 
but  it  arises  from  the  well-established  doctrine  that  the  jurisdic- 
tion of  one  sovereignty  (through  its  courts  or  otherwise)  cannot 
extend  into  the  territorial  boundaries  of  another  sovereignty. 
Therefore,  for  the  purposes  of  this  case,  it  will  be  admitted  that 
the  court  below  did  not  have  jurisdiction  of  the  person  of  the 
defendant  below,  plaintiff  in  error.  But  that  does  not  settle  this 
controversy.  The  court  below  had  jurisdiction  of  something.  It 
had  jurisdiction  of  the  plaintiff  below,  and  it  had  jurisdiction  of 
the  subject-matter  of  the  action.  This  latter  proposition,  how- 
ever, is  questioned.  Jurisdiction  is  of  two  kinds:  jurisdiction 
of  the  person,  and  jurisdiction  of  the  property  or  thing  in  con- 
troversy ;  or,  in  other  words,  jurisdiction  m  personam,  and  juris- 
diction in  rem;  and  jurisdiction  in  either  case  is  sufficient  to 
authorize  a  valid  judgment  to  be  rendered.  Now  it  may  be  ad- 
mitted, for  the  purposes  of  this  case,  and  is  admitted,  that  the 
old  equitable  action  to  quiet  title  to  real  estate  was  purely  an 
action  in  persMiam;  and  indeed  it  will  be  admitted  that  orig- 
inally every  action  in  equity  was  purely  an  action  in  personam, 


Sec.  2.]  dillon  v.  heller.  117 

but  such  is  not  the  case  under  the  statutes  of  this  state,  and 
such  is  not  the  case  with  respect  tO  the  present  action.  The 
present  action  is  purely  a  statutory  action  brought  by  the  plain- 
tiff under  §  594  of  the  Civil  Code,  and  is  one  of  a  kind  of  actions 
which  can  be  maintained  only  by  a  person  who  is  in  the  actual 
possession  of  the  property  in  controversy,  either  by  himself  or 
tenant.  Where  personal  service  of  summons  can  be  obtained  in 
such  an  action  the  action  is  one  in  personam  as  well  as  in  rem, 
but  where  service  of  summons  can  be  had  only  by  publication, 
then  the  action  is  one  only  in  rem.  The  present  action  is  one 
only  in  rem;  and  the  court  below  had  ample  jurisdiction  to  hear 
and  determine  the  same.  For  the  present,  we  shall  assume  that 
the  statutes  authorizing  service  of  summons  by  publication  were 
strictly  complied  with  in  the  present  case,  and  then  the  only 
question  to  be  considered  is  whether  the  statutes  themselves  are 
valid ;  or,  in  other  words,  we  think  the  question  is  this :  Has  the 
state  any  power  through  the  legislature  and  the  courts,  or  by 
any  other  means  or  instrumentalities,  to  dispose  of  or  control 
property  in  the  state  belonging  to  non-resident  owners  out  of 
the  state,  where  such  non-resident  owners  will  not  voluntarily 
surrender  jurisdiction  of  their  persons  to  the  state,  or  to  the 
courts  of  the  state,  and  where  the  most  urgent  public  policy  and 
justice  require  that  the  state  and  its  courts  should  assume  juris- 
diction over  such  property.  Power  of  this  kind  has  always  been 
exercised,  not  only  in  Kansas,  but  in  all  the  other  states.  Lands 
of  non-resident  owners,  as  well  as  of  resident  owners,  are  taxed 
and  sold  for  the  taxes;  and  the  owners  may  thereby  be  totally 
deprived  of  such  lands,  although  no  notice  is  ever  given  to  such 
owners  except  a  notice  by  publication  or  some  other  notice  of  no 
greater  value,  force,  or  efficacy.  (Beebe  v.  Doster,  36  Kans.  666, 
675-677.)  Mortgage  liens,  mechanic's  liens,  material  men's  liens, 
and  other  liens  are  foreclosed  against  non-resident  defendants 
upon  service  by  publication  only.  Lands  of  non-resident  defend- 
ants are  attached  and  sold  to  pay  their  debts ;  and  indeed  almost 
any  kind  of  action  may  be  instituted  and  maintained  against 
non-residents  to  the  extent  of  any  interest  in  property  which 
they  may  have  in  Kansas,  and  the  jurisdiction  to  hear  and  deter- 
mine in  this  kind  of  cases  may  be  obtained  wholly  and  entirely 
by  publication.  (Gillespie  v.  Thomas,  23  Kans.  138 ;  Walkenhorst 
V.  Lewis,  24  id.  420;  Rowe  v.  Parmer,  29  id.  337;  Venable  v. 
Dutch,  37  id.  515,  519.)     All  the  states,  by  proper  statutes,  au- 


118  PROCESS.  [Chap.  I. 

thorize  actions  against  non-residents,  and  service  of  summons 
therein  by  publication  only,  or  service  in  some  other  form  no 
better;  and  in  the  nature  of  things  such  must  be  done  in  every 
jurisdiction,  in  order  that  full  and  complete  justice  may  be  done 
where  some  of  the  parties  are  non-residents.  We  think  a  sover- 
eign state  has  the  power  to  do  just  such  a  thing.  All  things 
within  the  territorial  boundaries  of  a  .sovereignty  are  within  its 
jurisdiction;  and  generally,  within  its  own  boundaries,  a  sover- 
eignty is  supreme.  Kansas  is  supreme  except  so  far  as  its  pow- 
ers and  authority  are  limited  by  the  constitution  and  the  laws 
of  the  United  States.  And  within  the  constitution  and  the  laws 
of  the  United  States  the  courts  of  Kansas  may  have  all  the  juris- 
diction over  all  persons  and  things  within  the  state,  which  the 
constitution  and  laws  of  Kansas  may  give  to  them,  and  the  mode 
of  obtaining  this  jurisdiction  may  be  prescribed  wholly,  entirely 
and  exclusively  by  the  statutes  of  Kansas.  To  obtain  jurisdic- 
tion of  anything  within  the  state  of  Kansas,  the  statutes  of  Kan- 
sas may  make  service  by  publication  as  good  as  any  other  kind  of 
service.  In  the  present  case  the  plaintiff  resides  within  the  state 
of  Kansas,  and  he  virtually  surrendered  jurisdiction  of  himself 
to  the  court  below  when  he  commenced  this  action.  He  is  in  the 
actual  possession  of  the  property  in  controversy  and,  being  in 
the  actual  possession  thereof,  he  also  in  effect  surrendered  juris- 
diction thereof  to  the  court  when  he  brought  this  action,  and  as 
much  jurisdiction  thereof  as  any  court  in  any  action  could  obtain 
by  virtue  of  a  seizure  of  the  property  by  its  own  officers;  and 
service  of  summons  by  publication,  as  authorized  by  law,  was 
afterward  had  in  this  case ;  and  this  gave  the  court  the  power  to 
hear  and  determine  the  case,  and  to  render  judgment  therein, 
and  to  enforce  such  judgment;  and  this  is  all  that  is  necessary 
to  give  complete  and  absolute  jurisdiction  over  the  thing  in  con- 
troversy. Jurisdiction  is  simply  the  power  to  hear  and  deter- 
mine and  to  enforce  the  judgment,  order  or  decre«  made  or  ren- 
dered on  such  hearing.  Nothing  can  be  lacking  in  the  present 
case.  The  court  had  the  power  to  hear  and  determine  the  case, 
the  power  to  render  the  judgment  prayed  for,  which  was  to  quiet 
the  plaintiff's  title  and  possession;  and  he  was  in  the  actual  pos- 
session of  the  property;  and  as  the  property  was  and  is  within 
the  territorial  jurisdiction  of  the  court,  there  would  seem  to  be 
no  good  reason  why  the  judgment  is  not  valid,  and  why  the  court 
cannot  enforce  such  judgment.    It  is  said  in  the  ease  of  Hart  v. 


Sec.  2.]  dillon  v.  heller.  119 

Sansom,  110  U.  S.  155,  that  "the  courts  of  the  state  may  per- 
haps feel  bound  to  give  effect  to  the  service  made  as  directed  by 
its  statutes, ' '  and  also :  "  It  would  doubtless  be  within  the  power 
of  the  state  in  which  the  land  lies  to  provide  by  statute  that  if 
the  defendant  is  not  found  within  the  jurisdiction,  or  refuses  to 
make  or  to  cancel  a  deed,  this  should  be  done  in  his  behalf  by 
a  trustee  appointed  by  the  court  for  that  purpose."  Now  cer- 
tainly no  court  would  feel  bound  to  give  effect  to  a  statute  unless 
the  court  believed  the  statute  to  be  valid  and  an  existing  law, 
and  if  the  state  may  rightfully  provide  by  statute  that  any  one 
of  its  courts  may  authorize  a  trustee  to  make  or  cancel  a  deed 
executed  by  or  for  a  non-resident,  or  in  which  a  non-resident  is 
interested,  then  the  state  could  unquestionably  authorize  the 
same  court  by  its  judgment  alone,  to  cancel  or  in  effect  to  create 
the  deed,  for  the  trustee  appointed  by  the  court  is  the  mere 
creature  of  the  court  and  can  take  no  power  nor  exercise  any 
power  except  such  as  emanates  from  the  court  itself.  There  can 
certainly  be  no  necessity  for  the  circuitous,  indirect  and  cum- 
brous mode  of  appointing  a  trustee  to  do  a  thing,  when  the  judg- 
ment of  the  court  may  itself  answer  the  entire  purpose.  (See 
Civil  Code,  §  400.)  If  jurisdiction  cannot  be  given  to  the  court 
to  render  such  a  judgment,  then,  a  fortiori,  jurisdiction  could 
not  be  given  to  the  court  to  appoint  a  trustee  for  such  a  purpose. 
A  court  without  jurisdiction  cannot  do  anything — not  even  to 
appoint  a  trustee.  We  think  the  court  below  had  ample  juris- 
diction in  the  present  ease.  We  think  a  court  may  in  any  case, 
where  the  statutes  authorize  the  same,  obtain  jurisdiction  upon 
service  by  publication  concerning  anything  present  and  existing 
within  the  boundaries  of  the  state.  To  hold  otherwise  would  un- 
settle and  overturn  a  great  many  titles  to  land  in  this  state — 
titles  which  have  long  been  acquiesced  in ,  and  supposed  to  be 
good  and  valid,  and  to  be  settled  and  established  by  the  statutes 
and  by  numerous  judicial  decisions.  And  to  hold  otherwise 
would  also  do  great  injustice  to  innocent  purchasers  of  lands 
hold  the  same  under  such  titles.    We  think  such  titles  are  good.^ 

2  Accord :    Hildrith    v.    Oil    Cloth  As  to  when  service  by  publication 

Co.,  112  U.  S.  294;  Arndt  v.  Griggs,  is  due  process,  see  Jacob  v.  Roberts, 
134  U.  S.  316.  223  U.  S.  261. 


120  PROCESS.  [Chap.  I. 

PENNOYER  V.  NEFF. 

95  United  States,  714.     [1877.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. ^ 

This  is  an  action  to  recover  the  possession  of  a  tract  of  land, 
of  the  alleged  value  of  $15,000,  situated  in  the  State  of  Oregon. 
The  plaintiff  asserts  title  to  the  premises  by  a  patent  of  the 
United  States  issued  to  him  in  1866,  under  the  act  of  Congress 
of  September  27,  1850,  usually  known  as  the  Donation  Law  of 
Oregon.  The  defendant  claims  to  have  acquired  the  premises 
under  a  sheriff's  deed,  made  upon  a  sale  of  the  property  on 
execution  issued  upon  a  judgment  recovered  against  the  plain- 
tiff in  one  of  the  Circuit  Courts  of  the  state.  The  case  turns 
upon  the  validity  of  this  judgment. 

It  appears  from  the  record  that  the  judgment  was  rendered  in 
February,  1866,  in  favor  of  J.  H.  Mitchell,  for  less  than  $300, 
including  costs,  in  an  action  brought  by  him  upon  a  demand 
for  services  as  an  attorney;  that,  at  the  time  the  action  was 
commenced  and  the  judgment  rendered,  the  defendant  therein, 
the  plaintiff  here,  was  a  non-resident  of  the  state;  that  he  was 
not  personally  served  with  process,  and  did  not  appear  therein ; 
and  that  the  judgment  was  entered  upon  his  default  in  not  an- 
swering the  complaint,  upon  a  constructive  service  of  summons 
by  publication. 

The  Code  of  Oregon  provides  for  such  service  when  an  action 
is  brought  against  a  non-resident  and  absent  defendant,  who  has 
property  within  the  state.  It  also  provides,  where  the  action  is 
for  the  recovery  of  money  or  damages,  for  the  attachment  of  the 
property  of  the  non-resident.  And  it  also  declares  that  no 
natural  person  is  subject  to  the  jurisdiction  of  a  court  of  the 
state,  "unless  he  appear  in  the  court,  or  be  found  within  the 
state,  or  be  a  resident  thereof,  or  have  property  therein;  and, 
in  the  last  case,  only  to  the  extent  of  such  property  at  the  time 
the  jurisdiction  attached."  Construing  this  latter  provision  to 
mean  that,  in  action  for  money  or  damages  where  a  defendant 
does  not  appear  in  the  court,  and  is  not  found  within  the  state, 
and  is  not  a  resident  thereof,  but  has  property  therein,  the  juris- 

1  The  length  of  this  case  made  it  opinion  and  parts  of  the  principal 
necessary    to    omit    the    dissenting       opinion. 


Sec.  2.]  pennoyer  v.  nefp.  121 

diction  of  the  court  extends  only  over  such  property,  the  declara- 
tion expresses  a  principle  of  general,  if  not  universal  law.  The 
authority  of  every  tribunal  is  necessarily  restricted  by  the  terri- 
torial limits  of  the  state  in  which  it  is  established.  Any  attempt 
to  exercise  authority  beyond  those  limits  would  be  deemed  in 
every  other  forum,  as  has  been  said  by  this  court,  an  illegitimate 
assumption  of  power,  and  be  resisted  as  mere  abuse.  D  'Arcy  v. 
Ketchum  et  al.,  11  How.  165.  In  the  case  against  the  plaintiff, 
the  property  here  in  controversy  sold  under  the  judgment  ren- 
dered was  not  attached,  nor  in  any  way  brought  under  the  juris- 
diction of  the  court.  Its  first  connection  with  the  case  was  caused 
by  a  levy  of  the  execution.  It  was  not,  therefore,  disposed  of 
pursuant  to  any  adjudication,  but  only  in  enforcement  of  a  per- 
sonal judgment,  having  no  relation  to  the  property,  rendered 
against  a  non-resident  without  service  of  process  upon  him  in 
the  action,  or  his  appearance  therein.  The  court  below  did  not 
consider  that  an  attachment  of  the  property  was  essential  to  its 
jurisdiction  or  to  the  validity  of  the  sale,  but  held  that  the  judg- 
ment was  invalid  from  defects  in  the  affidavit  upon  which  the 
order  of  publication  was  obtained,  and  in  the  affidavit  by  which 
the  publication  was  proved. 

There  is  some  difference  of  opinion  among  the  members  of  this 
court  as  to  the  rulings  upon  these  alleged  defects.  The  majority 
are  of  opinion  that  inasmuch  as  the  statute  requires,  for  an  order 
of  publication,  that  certain  facts  shall  appear  by  affidavit  to  the 
satisfaction  of  the  court  or  judge,  defects  in  such  affidavit  can 
only  be  taken  advantage  of  on  appeal,  or  by  some  other  direct 
proceeding,  and  cannot  be  urged  to  impeach  the  judgment  col- 
laterally.    *     *     * 

If,  therefore,  we  were  confined  to  the  rulings  of  the  court 
below  upon  the  defects  in  the  affidavits  mentioned,  we  should  be 
unable  to  uphold  its  decision.  But  it  was  also  contended  in  that 
court,  and  is  insisted  upon  here,  that  the  judgment  in  the  state 
court  against  the  plaintiff  was  void  for  want  of  personal  service 
of  process  on  him,  or  of  his  appearance  in  the  action  in  which  it 
was  rendered,  and  that  the  premises  in  controversy  could  not  be 
subjected  to  the  payment  of  the  demand  of  a  resident  creditor 
except  by  a  proceeding  in  rem;  that  is,  by  a  direct  proceeding 
against  the  property  for  that  purpose.  If  these  positions  are 
sound,  the  ruling  of  the  Circuit  Court  as  to  the  invalidity  of  that 
judgment  must  be  sustained,  notwithstanding  our  dissent  from 


122  PROCESS.  [Chap.  I. 

the  reasons  upon  which  it  was  made.  And  that  they  are  sound 
would  seem  to  follow  from  two  well-established  principles  of 
public  law  respecting  the  jurisdiction  of  an  independent  state 
over  persons  and  property.  The  several  states  of  the  Union  are 
not,  it  is  true,  in  every  respect  independent,  many  of  the  rights 
and  power.s  which  originally  belonged  to  them  being  now  vested 
in  the  government  created  by  the  constitution.  But,  except  as 
restrained  and  limited  by  that  instrument,  they  possess  and  exer- 
cise the  authority  of  independent  states,  and  the  principles  of 
public  law  to  which  we  have  referred  are  applicable  to  them. 
One  of  these  principles  is,  that  every  state  pos.sesses  exclusive 
jurisdiction  and  sovereignty  over  persons  and  property  within 
its  territory.  As  a  consequence,  every  state  has  the  power  to 
determine  for  itself  the  civil  status  and  capacities  of  its  inhab- 
itants ;  to  prescribe  the  subjects  upon  which  they  may  contract, 
the  forms  and  solemnities  with  which  their  contracts  shall  be 
executed,  the  rights  and  obligations  arising  from  them,  and  the 
mode  in  which  their  validity  shall  be  determined  and  their  obli- 
gations enforced ;  and  also  to  regulate  the  manner  and  conditions 
upon  which  property  situated  within  such  territory,  both  per- 
sonal and  real,  may  be  acquired,  enjoyed,  and  transferred.  The 
other  principle  of  public  law  referred  to  follows  from  the  one 
mentioned ;  that  is,  that  no  state  can  exercise  direct  jurisdiction 
and  authority  over  persons  or  property  without  its  territory. 
Story,  Confl.  Laws,  c,  2;  Wheat,  Int.  Law,  pt.  2,  c.  2.  The  sev- 
eral states  are  of  equal  dignity  and  authority,  and  the  independ- 
ence of  one  implies  the  exclusion  of  power  from  all  others.  And 
so  it  is  laid  down  by  jurists,  as  an  elementary  principle,  that 
the  laws  of  one  state  have  no  operation  outside  of  its  territory, 
except  so  far  as  is  allowed  by  comity;  and  that  no  tribunal 
established  by  it  can  extend  its  process  beyond  that  territory  so 
as  to  subject  either  persons  or  property  to  its  decisions.  "Any 
exertion  of  authority  of  this  sort  beyond  this  limit,"  says  Story, 
"is  a  mere  nullity,  and  incapable  of  binding  such  persons  or 
property  in  any  other  tribunals. ' '    Story,  Confl.  Laws,  §  539. 

But  as  contracts  made  in  one  state  may  be  enforceable  only  in 
another  state,  and  property  may  be  held  by  non-residents,  the 
exercise  of  the  jurisdiction  which  every  state  is  admitted  to  pos- 
sess over  persons  and  property  within  its  own  territory  will 
often  affect  persons  and  property  without  it.  To  any  influence 
exerted  in  this  way  by  a  state  affecting  persons  resident  or  prop- 


Sec.  2.]  pennoyer  v.  nepf.  123 

erty  situated  elsewhere,  no  objection  can  be  justly  taken ;  whilst 
any  direct  exertion  of  authority  upon  them,  in  an  attempt  to  give 
ex-territorial  operation  to  its  laws,  or  to  enforce  an  ex-territorial 
jurisdiction  by  its  tribunals,  would  be  deemed  an  encroachment 
upon  the  independence  of  the  state  in  which  the  persons  are 
domiciled  or  the  property  is  situated,  and  be  resisted  as  usurpa- 
tion. 

Thus  the  state,  through  its  tribunals,  may  compel  persons 
domiciled  within  its  limits  to  execute,  in  pursuance  of  their  con- 
tracts respecting  property  elsewhere  situated,  instruments  in 
such  form  and  with  such  solemnities  as  to  transfer  the  title,  so 
far  as  such  formalities  can  be  complied  with;  and  the  exercise 
of  this  jurisdiction  in  no  manner  interferes  with  the  supreme 
control  over  the  property  by  the  state  within  which  it  is  situated. 
Penn.  v.  Lord  Baltimore,  1  Ves.  444 ;  Massie  v.  Watts,  6  Cranch, 
148 ;  Watkins  v.  Holman,  16  Pet.  25 ;  Corbett  v.  Nutt,  10  Wall. 
464. 

So  the  state,  through  its  tribunals,  may  subject  property  sit- 
uated within  its  limits  owned  by  non-residents  to  the  payment 
of  the  demand  of  its  own  citizens  against  them ;  and  the  exercise 
of  this  jurisdiction  in  no  respect  infringes  upon  the  sovereignty 
of  the  state  where  the  owners  are  domiciled.  Every  state  owes 
protection  to  its  own  citizens ;  and,  when  non-residents  deal  with 
them,  it  is  a  legitimate  and  just  exercise  of  authority  to  hold  and 
appropriate  any  property  owned  by  such  non-residents  to  satisfy 
the  claims  of  its  citizens.  It  is  in  virtue  of  the  state's  jurisdic- 
tion over  the  property  of  the  non-resident  situated  within  its 
limits  that  its  tribunals  can  inquire  into  that  non-resident's  ob- 
ligations to  its  own  citizens,  and  the  inquiry  can  then  be  carried 
only  to  the  extent  necessary  to  control  the  disposition  of  the 
property.  If  the  non-resident  have  no  property  in  the  state, 
there  is  nothing  upon  which  the  tribunals  can  adjudicate.  *  *  * 
[The  opinion  here  reviews  Picquet  v.  Swan,  5  ]\Iass.  35,  Boswell 
V.  Otis,  9  How.  336,  Cooper  v.  Reynolds,  10  Wall.  308,  and  then 
proceeds :]  If,  without  personal  service,  judgments  in  personam, 
obtained  ex  parte  against  non-residents  and  absent  parties,  upon 
mere  publication  of  process,  which,  in  the  great  majority  of 
eases,  would  never  be  seen  by  the  parties  interested,  could  be 
upheld  and  enforced,  they  would  be  the  constant  instruments  of 
fraud  and  oppression.  Judgments  for  all  sorts  of  claims  upon 
contracts  and  for  torts,  real  or  pretended,  would  be  thus  obtained. 


124  PROCESS.  [Chap.  I. 

under  which  property  would  be  seized,  when  the  evidence  of  the 
transactions  upon  which  they  were  founded,  if  they  ever  had  any 
existence,  had  perished. 

Substituted  service  by  publication,  or  in  any  other  authorized 
form,  may  be  sufficient  to  inform  parties  of  the  object  of  pro- 
ceedings taken  where  property  is  once  brought  under  the  control 
of  the  court  by  seizure  or  some  equivalent  act.  The  law  assumes 
that  property  is  always  in  the  possession  of  its  owner,  in  person 
or  by  agent;  and  it  proceeds  upon  the  theory  that  its  seizure 
will  inform  him,  not  only  that  it  is  taken  into  the  custody  of 
the  court,  but  that  he  must  look  to  any  proceedings  authorized 
by  law  upon  such  seizure  for  its  condemnation  and  sale.  Such 
service  may  also  be  sufficient  in  cases  where  the  object  of  the 
action  is  to  reach  and  dispose  of  property  in  the  state,  or  of  some 
interest  therein,  by  enforcing  a  contract  or  a  lien  respecting  the 
same,  or  to  partition  it  among  different  owners,  or,  when  the  pub- 
lic is  a  party,  to  condemn  and  appropriate  it  for  a  public  purpose. 
In  other  words,  such  service  may  answer  in  all  actions  which  are 
substantially  proceedings  iji  rem.  But  where  the  entire  object 
of  the  action  is  to  determine  the  personal  rights  and  obligations 
of  the  defendants,  that  is,  where  the  suit  is  merely  in  personam, 
constructive  service  in  this  form  upon  a  non-resident  is  ineffec- 
tual for  any  purpose.  Process  from  the  tribunals  of  one  state 
cannot  run  into  another  state,  and  summon  parties  there  dom- 
iciled to  leave  its  territory  and  respond  to  proceedings  against 
them.  Publication  of  process  or  notice  within  the  state  where 
the  tribunal  sits  cannot  create  any  greater  obligation  upon  the 
non-resident  to  appear.  Process  sent  to  him  out  of  the  state, 
and  process  published  within  it,  are  equally  unavailing  in  pro- 
ceedings to  establish  his  personal  liability. 

The  want  of  authority  of  the  tribunals  of  a  state  to  adjudicate 
upon  the  obligations  of  non-residents,  where  they  have  no  prop- 
erty within  its  limits,  is  not  denied  by  the  court  below :  but  the 
position  is  assumed  that,  where  they  have  property  within  the 
state,  it  is  immaterial  whether  the  property  is  in  the  first  instance 
brought  under  the  control  of  the  court  by  attachment  or  some 
other  equivalent  act,  and  afterwards  applied  by  its  judgment  to 
the  satisfaction  of  demands  against  its  owner ;  or  such  demands 
be  first  established  in  a  personal  action,  and  the  property  of  the 
non-resident  be  afterwards  seized  and  sold  on  execution.  But  the_ 
answer  to  this  position  has  already  been  given  in  the  statement, 


Sec.  2.]  pennoyer  v.  neff.  125 

that  the  jurisdiction  of  the  court  to  inquire  into  and  determine 
his  obligations  at  all  is  only  incidental  to  its  jurisdiction  over 
the  property.  Its  jurisdiction  in  that  respect  cannot  be  made  to 
depend  upon  facts  to  be  ascertained  after  it  has  tried  the  cause^ 
and  rendered  the  judgment.  If  the  judgment  be  previously  void, 
it  will  not  become  valid  by  the  subsequent  discovery  of  property 
of  the  defendant,  or  by  his  subsequent  acquisition  of  it.  The 
judgment  if  void  when  rendered  will  always  remain  void ;  it  can- 
not occupy  the  doubtful  position  of  being  valid  if  property  be 
found,  and  void  if  there  be  none.  Even  if  the  position  assumed 
were  confined  to  cases  where  the  non-resident  defendant  pos- 
sessed property  in  the  state  at  the  commencement  of  the  action, 
it  would  still  make  the  validity  of  the  proceedings  and  judgment 
depend  upon  the  question  whether,  before  the  levy  of  the  execu- 
tion, the  defendant  had  or  had  not  disposed  of  the  property.  If 
before  the  levy  the  property  should  be  sold,  then,  according  to 
this  position,  the  judgment  would  not  be  binding.  This  doctrine 
would  introduce  a  new  element  of  uncertainty  in  judicial  pro- 
ceedings. The  contrary  is  the  law :  the  validity  of  every  judg- 
ment depends  upon  the  jurisdiction  of  the  court  before  it  is 
rendered,  not  upon  what  may  occur  subsequently.  In  "Webster 
V.  Reid,  reported  in  11th  of  Howard,  the  plaintiff  claimed  title 
to  land  sold  under  judgments  recovered  in  suits  brought  in  a 
territorial  court  of  Iowa,  upon  publication  of  notice  under  a  law 
of  the  territory,  without  service  of  process ;  and  the  court  said : 

"These  suits  were  not  a  proceeding  in  rem  against  the  land, 
but  were  in  personam  against  the  owners  of  it.  Whether  they 
all  resided  within  the  territory  or  not  does  not  appear,  nor  is  it 
a  matter  of  any  importance.  No  person  is  required  to  answer 
in  a  suit  on  whom  process  has  not  been  served,  or  whose  property 
has  not  been  attached.  In  this  case,  there  was  no  personal  no- 
tice, nor  an  attachment  or  other  proceeding  against  the  land, 
until  after  the  judgments.  The  judgments,  therefore,  are  nulli- 
ties, and  did  not  authorize  the  executions  on  which  the  land  was 
sold." 

The  force  and  effect  of  judgments  rendered  against  non-resi- 
dents without  personal  service  of  process  upon  them,  or  their 
voluntary  appearance,  have  been  the  subject  of  frequent  consid- 
eration in  the  courts  of  the  United  States  and  of  the  several  states, 
as  attempts  have  been  made  to  enforce  such  judgments  in  states 
other  than  those  in  which  they  were  rendered,  under  the  provi- 


126  PROCESS.  [Chap.  I. 

sion  of  the  constitution  requiring  that  "full  faith  and  credit 
shall  be  given  in  each  state  to  the  public  acts,  records,  and  judi- 
cial proceedings  of  every  other  state ; ' '  and  the  act  of  Congress 
providing  for  the  mode  of  authenticating  such  acts,  records,  and 
proceedings,  and  declaring  that,  when  thus  authenticated,  "they 
shall  have  such  faith  and  credit  given  to  them  in  every  court 
M^ithin  the  United  States  as  they  have  by  law  or  usage  in  the 
courts  of  the  state  from  which  they  are  or  shall  be  taken."  In 
the  earlier  cases,  it  was  supposed  that  the  act  gave  to  all  judg- 
ments the  same  effect  in  other  states  which  they  had  by  law  in 
the  state  where  rendered.  But  this  view  was  afterwards  quali- 
fied so  as  to  make  the  act  applicable  only  when  the  court  render- 
ing the  judgment  had  jurisdiction  of  the  parties  and  of  the  sub- 
ject matter,  and  not  to  preclude  an  inquiry  into  the  jurisdiction 
of  the  court  in  which  the  judgment  was  rendered,  or  the  right 
of  the  state  itself  to  exercise  authority  over  the  person  or  the 
subject  matter.  M'Elmoyle  v.  Cohen,  13  Pet.  312.  In  the  case 
of  D'Arcy  v.  Ketchum,  reported  in  the  11th  of  Howard,  this 
view  is  stated  with  great  clearness.     *     *     * 

[The  opinion  then  reviews  Insurance  Co.  v.  French,  18  How. 
404;  Bissell  v.  Briggs,  9  Mass.  462;  Kilburn  v.  Woodworth,  5 
John.  (N.  Y.)  37.] 

Since  the  adoption  of  the  Fourteenth  Amendment  to  the  Fed- 
eral Constitution,  the  validity  of  such  judgments  may  be  directly 
questioned,  and  their  enforcement  in  the  state  resisted  on  the 
ground  that  proceedings  in  a  court  of  justice  to  determine  the 
personal  rights  and  obligations  of  parties  over  whom  that  court 
has  no  jurisdiction  do  not  constitute  due  process  of  law.  What- 
ever difficulty  may  be  experienced  in  giving  to  those  terms  a 
definition  which  will  embrace  every  permissible  exertion  of  power 
affecting  private  rights,  and  exclude  such  as  is  forbidden,  there 
can  be  no  doubt  of  their  meaning  when  applied  to  judicial  pro- 
ceedings. They  then  mean  a  course  of  legal  proceedings  accord- 
ing to  those  rules  and  principles  which  have  been  established  in 
our  systems  of  jurisprudence  for  the  protection  and  enforcement 
of  private  rights.  To  give  such  proceedings  any  validity,  there 
must  be  a  tribunal  competent  by  its  constitution — that  is,  by  the 
law  of  its  creation — to  pass  upon  the  subject  matter  of  the  suit ; 
and,  if  that  involves  merely  a  determination  of  the  personal  lia- 
bility of  the  defendant,  he  must  be  brought  within  its  jurisdic- 


II 


Sec.  2.]  pennoyer  v.  neff.  127 

tion  by  service  of  process  within  the  state,  or  his  voluntary  ap- 
pearance. 

Except  in  cases  affecting  the  personal  status  of  the  plaintiff, 
and  cases  in  which  that  mode  of  service  may  be  considered  to 
have  been  assented  to  in  advance,  as  hereinafter  mentioned,  the 
substituted  service  of  process  by  publication,  allowed  by  the  law 
of  Oregon  and  by  similar  laws  in  other  states,  where  actions  are 
brought  against  non-residents,  is  effectual  only  where,  in  con- 
nection with  process  against  the  person  for  commencing  the 
action,  property  in  the  state  is  brought  under  the  control  of  the 
court,  and  subjected  to  its  disposition  by  process  adapted  to  that 
purpose,  or  where  the  judgment  is  sought  as  a  means  of  reaching 
such  property  or  affecting  some  interest  therein ;  in  other  words, 
where  the  action  is  in  the  nature  of  a  proceeding  in  rem.  As 
stated  by  Cooley  in  his  Treati.se  on  Constitutional  Limitations, 
405,  for  any  other  purpose  than  to  subject  the  property  of  a 
non-resident  to  valid  claims  against  him  in  the  state,  "due  pro- 
cess of  law  would  require  appearance  or  personal  service  before 
the  defendant  could  be  personally  bound  by  any  judgment  ren- 
dered." 

It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rem  is  one 
taken  directly  against  property,  and  has  for  its  object  the  dis- 
position of  the  property,  without  reference  to  the  title  of  indi- 
vidual claimants;  but  in  a  larger  and  more  general  sense,  the 
terms  are  applied  to  actions  between  parties,  where  the  direct 
object  is  to  reach  and  dispose  of  property  owned  by  them,  or 
of  some  interest  therein.  Such  are  cases  commenced  by  attach- 
ment against  the  property  of  debtors,  or  instituted  to  partition 
real  estate,  foreclose  a  mortgage,  or  enforce  a  lien.  So  far  as 
they  affect  property  in  the  state,  they  are  substantially  proceed- 
ings in  rem  in  the  broader  sense  which  we  have  mentioned. 

It  is  hardly  necessary  to  observe  that  in  all  we  have  said  we 
have  had  reference  to  proceedings  in  courts  of  first  instance,  and 
to  their  jurisdiction,  and  not  to  proceedings  in  an  appellate  tri- 
bunal to  review  the  action  of  such  courts.  The  latter  may  be 
taken  upon  such  notice,  personal  or  constructive,  as  the  state 
creating  the  tribunal  may  provide.  They  are  considered  as 
rather  a  continuation  of  the  original  litigation  than  the  com- 
mencement of  a  new  action.  Nations  et  al.  v.  Johnson  et  al.,  24 
How.  195. 

It  follows  from  the  views  expressed  that  the  personal  judg- 


128  PROCESS.  [Chap.  I. 

ment  recovered  in  the  state  court  of  Oregon  against  the  plaintiff 
herein,  then  a  non-resident  of  the  state,  was  without  any  validity, 
and  did  not  authorize  a  sale  of  the  property  in  controversy. 

To  prevent  any  misapplication  of  the  views  expressed  in  this 
opinion,  it  is  proper  to  observe  that  we  do  not  mean  to  assert, 
by  anything  we  have  said,  that  a  state  may  not  authorize  pro- 
ceedings to  determine  the  status  of  one  of  its  citizens  towards  a 
non-resident,  which  would  be  binding  within  the  state,  though 
made  without  service  of  process  or  personal  notice  to  the  non- 
resident. The  jurisdiction  which  every  state  possesses  to  deter- 
mine the  civil  status  and  capacities  of  all  its  inhabitants  involves 
authority  to  prescribe  the  conditions  on  which  proceedings  affect- 
ing them  may  be  commenced  and  carried  on  within  its  territory. 
The  state,  for  example,  has  absolute  right  to  prescribe  the  condi- 
tions upon  which  the  marriage  relation  between  its  own  citizens 
shall  be  created,  and  the  causes  for  which  it  may  be  dissolved. 
One  of  the  parties  guilty  of  acts  for  which,  by  the  law  of  the 
state,  a  dissolution  may  be  granted,  may  have  removed  to  a  state 
where  no  dissolution  is  permitted.  The  complaining  party  would, 
therefore,  fail  if  a  divorce  were  sought  in  the  state  of  the  de- 
fendant; and  if  application  could  not  be  made  to  the  tribunals 
of  the  complainant's  domicile  in  such  case,  and  proceedings  be 
there  instituted  without  personal  service  of  process  or  personal 
notice  to  the  offending  party,  the  injured  citizen  would  be  with- 
out redress.    Bish.  Marr.  and  Div.,  §  156. 

Neither  do  we  mean  to  assert  that  a  state  may  not  require  a 
non-resident  entering  into  a  partnership  or  association  within 
its  limits,  or  making  contracts  enforceable  there,  to  appoint  an 
agent  or  representative  in  the  state  to  receive  service  of  process 
and  notice  in  legal  proceedings  instituted  with  respect  to  such 
partnership,  association,  or  contracts,  or  to  designate  a  place 
where  such  service  may  be  made  and  notice  given,  and  provide, 
upon  their  failure,  to  make  such  appointment  or  to  designate 
such  place  that  service  may  be  made  upon  a  public  officer  desig- 
nated for  that  purpose,  or  in  some  other  prescribed  way,  and  that 
judgments  rendered  upon  such  service  may  not  be  binding  upon 
the  non-residents  both  within  and  without  the  state.  As  was  said 
by  the  Court  of  Exchequer  in  Vallee  v.  Dumergue,  4  Exch.  290, 
"It  is  not  contrary  to  natural  justice  that  a  man  who  has  agreed 
to  receive  a  particular  mode  of  notification  of  legal  proceedings 
should  be  bound  by  a  judgment  in  which  that  particular  mode 


Sec.  2.  ]  beyer  v.  continental  trust  co.  129 

of  notification  has  been  followed,  even  though  he  may  not  have 
actual  notice  of  them."  See  also  The  Lafayette  Insurance  Co. 
V.  French  et  al.,  18  How.  404,  and  Gillispie  v.  Commercial  Mut- 
ual Marine  Insurance  Co.,  12  Gray  (Mass.),  201.  Nor  do  we 
doubt  that  a  state,  on  creating  corporations  or  other  institutions 
for  pecuniary  or  charitable  purposes,  may  provide  a  mode  in 
which  their  conduct  may  be  investigated,  their  obligations  en- 
forced, or  their  charters  revoked,  which  shall  require  other  than 
personal  service  upon  their  officers  or  members.  Partie.s  becom- 
ing members  of  such  corporations  or  institutions  would  hold 
their  interest  subject  to  the  conditions  prescribed  by  law.  Copin 
V.  Adamson,  Law  Rep.  9  Ex.  345. 

In  the  present  case,  there  is  no  feature  of  this  kind,  and,  con- 
sequently, no  consideration  of  what  would  be  the  effect  of  such 
legislation  in  enforcing  the  contract  of  a  non-resident  can  arise. 
The  question  here  respects  only  the  validity  of  a  money  judgment 
rendered  in  one  state,  in  an  action  upon  a  simple  contract  against 
the  resident  of  another,  without  service  of  process  upon  him, 
or  his  appearance  therein. 

Judgment  affirmed. 


BEYER  V.  CONTINENTAL  TRUST  CO. 
63  Missouri  Appeals,  521.     [1895.] 

Smith,  P,  J.  This  is  an  action  somewhat  in  the  nature  of  a 
creditor's  bill.  Briefly  analyzed,  the  allegations  of  the  petition 
are: 

First.  That  the  Continental  Trust  Company,  a  Missouri  cor- 
poration, became  insolvent  on  April  1,  1890,  and  thereafter  re- 
mained so.  Second.  That  at  and  since  April  1,  1890,  defendant 
L.  V.  Harkness  owned  $5,000  of  its  capital  stock.  Third.  That 
since  April  1,  1890,  said  Harkness  has  received  $1,200  dividends 
on  his  capital  stock.  Fourth.  That  between  March  25,  1890,  and 
November  5,  1892,  said  corporation  became  indebted  to  the  plain- 
tiff in  the  sum  of  $2,118.51,  which  sura  was  due  plaintiff  on  said 
last  day.  Fifth.  That  on  November  5,  1892,  said  corporatioji 
made  an  as.signment  for  the  benefit  of  its  creditors,  and  that 
plaintiff's  demand  has  been  presented  to  the  assignee  and  allowed 


130  PROCESS.  [Chap.  I. 

and  a  dividend  of  three  per  cent  has  been  paid  on  it  by  the 
assignee,  but  that  no  more  will  be  realized.  Sixth.  That  defend- 
ant Harkness  is  a  non-resident  and  can  not  be  served  with  proc- 
ess in  this  state  and  that  he  owns  certain  real  estate  in  this 
state  (describing  it).  Seventh.  That  plaintiff  can  not,  because 
of  defendant's  non-residence  and  the  nature  of  his  demand,  pro- 
cure either  a  personal  judgment  against  defendant,  or  a  judg- 
ment by  attachment  process,  or  otherwise  at  law,  and  is  without 
remedy  at  law.  Eighth.  Prays  for  judgment  against  defendant 
L.  V.  Harkness  for  $1,200,  and  that  his  said  real  estate  be  ad- 
judged to  be  sold  to  satisfy  the  same. 

On  filing  the  petition  an  order  was  made,  directed  to  the  de- 
fendant Harkness,  notifying  him  of  the  commencement  of  the 
suit,  and  stating  the  object  and  general  nature  of  the  petition 
to  be  to  recover  a  judgment  against  him  for  $1,200,  and  to  have 
said  real  estate  charged  with  the  payment  thereof.  Proof  of  the 
publication  of  the  order  was  made,  when  defendant  Harkness 
appeared  specially  in  the  cause  and  moved  the  court  to  quash  the 
proceedings,  on  the  ground  that  same  were  irregular,  illegal  and 
void.  The  court  sustained  the  motion,  whereupon  plaintiff  has 
appealed  to  this  court. 

All  the  authorities  are  agreed  that  a  dividend  paid  by  an  in- 
solvent corporation  to  a  stockholder,  as  against  a  creditor  at  that 
time,  is  merely  a  gift  as  against  said  creditor,  and  is,  in  law, 
fraudulent  and  void.  Herman  v.  Britton,  88  Mo.  549;  Gill  v. 
Bales,  72  Mo.  424 ;  Williams  v.  Boice,  38  N.  J.  Eq.  364 ;  s.  c,  6 
Am.  &  Eng.  Corp.  Cases,  361 ;  Bartlett  v.  Drew,  57  N.  Y.  587 ; 
Hastings  v.  Drew,  76  N.  Y.  9.  And  all  persons  receiving  a  gift 
from  an  insolvent  corporation  are  held  to  account  to  judgment 
creditors  for  such  gifts,  and  the  proper  remedy  is  by  an  action 
in  the  nature  of  a  creditor's  bill  by  a  judgment  creditor.  Roan 
V.  Winn,  93  Mo.  503.  And  it  has  been  several  times  ruled  by 
the  appellate  courts  of  this  state  that  an  attachment  can  issue 
only  on  a  legal  demand  and  not  on  an  equitable  claim.  Bach- 
man  V.  Lewis,  27  Mo.  App.  81 ;  Beach  v.  Baldwin,  14  Mo.  597 ; 
Lackland  v.  Garesche,  56  Mo.  267. 

The  plaintiff  contends  that  he  has  the  right  to  reach  the  money 
in  the  hands  of  the  defendant,  as  a  part  of  the  assets  of  the  tru.st 
company  applicable  to  the  payment  of  its  debts,  and  its  creditors 
have  a  lien  thereon  and  the  right  of  priority  of  payment  over  its 
stockholders.     But  the  lien  of  the  creditors  of  an  insolvent  cor- 


Sec.  2.]  beyer  v.  continental  trust  co.  131 

poration  upon  its  assets  in  the  hands  of  others,  is  a  purely  equita- 
ble lien  and  can  only  be  enforced  in  an  equitable  proceeding. 
McLean  v.  Eastman,  21  Hun.  312.  It  is  conceded  that  upon 
such  mere  equitable  claim  no  attachment  can  issue.  And  it  is, 
in  effect,  conceded  by  the  allegations  in  the  petition  that  the  de- 
fendant Harkness  acquired  a  valid  title  to  the  money  paid  him 
as  a  dividend  by  the  tru.st  company,  as  against  it  and  its  assignees. 
Bartlett  v.  Drew,  57  N.  Y.  587 ;  Von  v.  Grant,  16  Mass.  7. 

Turning  to  the  allegations  of  the  petition,  it  is  seen  that  no 
connection  is  there  traced  between  dividends  and  the  real  estate. 
It  is  not  alleged  that  the  dividends  were  used  by  the  defendant 
Harkness  in  the  purchase  of  the  real  estate.  But  the  plaintiff 
contends  that  the  proceeding  can  be  upheld  under  a  provision  of 
the  statute,  section  2022,  Revised  Statutes,  which  provides  that, 
"in  all  actions  at  law,  or  in  equity,  have  for  their  immediate 
object  the  enforcement  or  establishment  of  any  law^ful  right, 
claim,  or  demand  to  or  against  any  real  or  personal  property 
within  the  jurisdiction  of  the  court,"  etc. 

The  prayer  of  the  petition  is  for  judgment  against  defendant 
for  the  amount  of  the  dividends  received  by  him  of  the  trust 
company  and  for  a  decree  that  the  defendant's  lands  be  sold  as 
upon  execution  and  the  proceeds  thereof  applied  to  the  satis- 
faction of  the  judgment.  The  first  part  of  the  decree  prayed  for 
is  no  more  than  a  judgment  in  personam,  and  could  not  be  effect- 
ive in  the  absence  of  actual  notice — that  is,  notice  by  summons. 
The  general  rule  is  that  where  a  decree  or  judgment  creates  a 
personal  duty  or  obligation,  or  declares  a  personal  charge,  the 
proceedings  are  ineffective  unless  there  be  actual  notice.  Pen- 
noyer  v.  Neff,  95  U.  S.  714. 

This  brings  us  to  the  consideration  of  the  decisive  question  in 
the  case,  which  is  that  of  jurisdiction  of  the  res — the  property. 
Jurisdiction  of  the  res  is  said  to  be  obtained  by  a  seizure  under 
process  of  the  court,  whereby  it  is  held  to  abide  such  order  as 
the  court  may  make  concerning  it.  So,  while  the  general  rule 
in  regard  to  jurisdiction  in  rem  requires  the  actual  seizure  and 
possession  of  the  res  by  the  officer  of  the  court,  such  jurisdic- 
tion may  be  acquired  by  acts  which  are  of  equivalent  import 
and  which  stand  for  and  represent  the  dominion  of  the  court 
over  the  thing,  and,  in  effect,  subject  it  to  the  control  of  the 
court.  Among  this  latter  class  is  the  levy  of  a  writ  of  attach- 
ment, or  seizure  of  real  estate,  which,  being  incapable  of  removal 


132  PROCESS.  [Chap,  I. 

and  lying  within  the  territorial  jurisdiction  of  the  court,  is  for 
all  practical  purposes  brought  under  the  jurisdiction  of  the 
court,  by  the  officer  of  the  court  levying  the  writ  and  return  of 
that  fact  into  court.  So  the  writ  of  garnishment  or  attachment, 
or  other  form  of  service  on  a  party  holding  a  fund  which  be- 
comes the  subject  of  litigation,  brings  that  fund  into  court, 
though  the  money  remain  in  the  actual  custody  of  one  not  an 
officer  of  the  court.  An  action  commenced  in  partition  of  real 
estate,  foreclosure  of  a  mortgage,  or  enforcement  of  a  lien,  and 
the  like,  so  far  as  they  effect  the  property  in  the  state,  are  sub- 
stantially proceedings  in  rem. 

There  are  cases,  not  partaking  of  the  nature  of  proceedings 
in  rem,  wdiere  the  judgment  is  to  have  effect  on  personal  rights, 
as  in  divorce  suits,  or  in  proceedings  to  compel  conveyances,  or 
other  personal  acts,  in  which  the  legislature  has  properly  made 
the  jurisdiction  to  depend  on  the  publication  of  notice,  or  on 
the  bringing  the  suit  to  the  notice  of  the  party  in  some  other 
mode,  when  he  is  not  in  the  territorial  jurisdiction.  Cooper  v. 
Reynolds,  10  Wall.  308;  Boswell  v.  Otis,  9  How.  (U.  S.)  336; 
Pennoyer  v.  Neff,  supra;  Hawes  on  Jurisdiction,  §  233. 

The  case  in  hand  does  not  fall  within  any  of  these  categories. 
Substituted  service  by  publication,  or  in  any  other  authorized 
form,  may  be  sufficient  to  inform  non-residents  of  the  object  of 
proceedings  taken  when  property  is  once  brought  under  the  con- 
trol of  the  court  by  seizure,  or  some  equivalent  act.  The  juris- 
diction of  a  court  to  inquire  into  and  determine  their  obligations 
at  all,  is  only  incidental  to  its  jurisdiction  over  property. 

In  this  case  there  has  neither  been  a  seizure  nor  its  equivalent. 
Nor  is  there  any  pretense  of  the  existence  of  a  lien  of  any  kind 
which  it  is  sought  to  enforce  against  the  property.  The  court 
could  acquire  no  jurisdiction  over  the  property  until  it  should, 
by  its  findings  and  decree,  establish  the  plaintiff's  claim  and 
pronounce  judgment  thereon  in  his  favor,  for  the  amount  thereof, 
and  cause  a  seizure  of  the  same  under  its  decree.  From  the 
commencement  of  the  suit  until  then,  the  court  had  not  acquired 
jurisdiction  over  the  property.  The  judgment  being  personal 
and  on  substituted  service,  would,  of  course,  be  void.  Wilson  v. 
Railroad,  108  Mo.  588 ;  Smith  v.  McCutchem.  38  "Slo.  415 ;  Lati- 
mer V.  Railroad,  43  Mo.  105. 

The  proceeding  up  to  the  time  of  the  seizure  of  the  property, 
under  the  decree,  would  constitute  no  legal  impediment  to  the 


Sec.  2.  ]  beyer  v.  continental  trust  co.  133 

sale  of  it  by  the  defendant,  because  there  had  been  no  previous 
seizure,  or  other  equivalent  act,  bringing  it  under  the  control  of 
the  court.  It  was  until  then  as  if  no  such  suit  had  been  com- 
menced. If  this  be  so,  which  can  hardly  be  disputed,  the  validity 
of  the  judgment  would  depend  upon  w^hether  the  defendant  had 
disposed  of  the  property  before  the  seizure  of  it  under  the  decree. 
If  he  had,  the  decree  would  be  ineffectual.  This  would  introduce 
an  element  of  uncertainty  into  judicial  proceedings,  which  is 
not  sanctioned  by  the  law,  for  as  said  in  Pennoyer  v.  Neff,  supra, 
the  validity  of  every  judgment  depends  upon  the  jurisdiction  of 
the  court  before  it  is  rendered.  And  while  the  statute  provides 
that  on  substituted  notice,  the  court  is  authorized  to  afford  relief 
in  all  actions  at  law,  or  in  equity,  which  have  for  their  object  the 
enforcement  or  establishment  of  any  right,  claim,  or  demand 
against  any  real  or  personal  property  within  its  jurisdiction, 
this  authority  must  be  limited  and  confined  to  those  cases  where 
it  obtains  jurisdiction  over  the  res  by  seizure,  or  its  equivalent, 
or  in  those  where  there  is  some  lien  against  the  property  in  ex- 
istence when  the  action  is  commenced,  which  may  be  enforced  by 
its  decree.  The  mere  fact  that  the  property  is  within  the  terri- 
torial jurisdiction  of  the  court  will  not  be  sufficient,  unless  it  has, 
in  some  way,  acquired  jurisdiction  over  it.  It  is  immaterial 
whether  the  proceeding  against  the  property  be  by  an  attach- 
ment, or  bill  in  equity.  It  must  be  substantially  a  proceeding 
in  rem} 

This  is  the  result  of  all  the  authorities  at  which  we  have  looked, 
including  AVilson  v.  Railroad,  supra;  Arndt  v.  Gregg,  134  U.  S. 
316;  Cooley,  Const.  Lim.  500,  501,  cited  by  the  plaintiff.  If  the 
state  has  the  constitutional  power  to  enact  a  statute  authorizing 
a  decree  on  substituted  notice,  in  a  case  like  this,  we  do  not  think 
it  has  yet  done  so.  In  our  opinion,  the  ruling  of  the  court  below 
on  the  motion  was  not  erroneous  and  therefore  the  judgment  will 
be  affirmed.    All  concur. 

1  For  an  elaborate  discussion  of  dent  without  seizure  of  property, 
the  cases  in  which  service  by  publi-  see  Pana  v.  Bowler,  107  U.  S.  529; 
cation  may  be  had   on   a  non-resi-       Arndt  v.  Gregg,  134  U.  S.  316. 


134  PROCESS.  [Chap.  I. 

BICKERDIKE  v.  ALLEN. 

157  Illinms,95.      [1895.] 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  court : 

This  is  a  creditor's  bill,  filed  on  December  17,  1891,  in  the 
Superior  Court  of  Cook  county  by  the  appellees,  as  executors  of 
the  estate  of  Edwin  C.  Allen,  deceased,  against  appellant  and 
others,  based  upon  a  judgment  recovered  by  said  testator,  in  his 
lifetime,  on  November  20,  1873,  against  appellant  and  one  Pratt, 
and  claimed  to  have  been  revived  by  judgment  of  revival  entered 
on  December  9,  1891,  upon  which  execution  was  issued  and 
returned  unsatisfied  after  demand  made.  Amendments  were 
filed  to  the  original  bill,  and  afterwards  a  supplemental  bill  was 
filed.  Answers  were  filed  by  the  appellant,  and  other  defendants 
alleged  to  have  in  their  hands  stock  belonging  to  appellant.  A 
receiver  was  appointed  by  agreement  of  parties  with  directions 
to  sell  the  stock,  and  hold  the  proceeds  to  abide  the  final  disposi- 
tion of  the  ease. 

The  answer  of  the  appellant  here  to  the  creditor's  bill  below 
set  up,  among  other  things,  that  in  the  scire  facias  proceeding  to 
revive  the  judgment,  the  revival  judgment  was  void,  because 
the  court  obtained  no  jurisdiction  over  the  apellant  by  personal 
service  or  entry  of  appearance ;  and  that  section  26  of  the  Practice 
Act  (chap.  110,  sec.  26  of  Rev.  Stat. ;  2  Starr  &  Cur.  Stat.,  page 
1789)  was  unconstitutional,  as  being  in  conflict  with  section  2 
of  article  2  of  the  constitution  of  Illinois,  which  provides  that 
'*no  person  shall  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law,"  and  also  as  being  in  conflict  with  section  1 
of  the  fourteenth  amendment  to  the  constitution  of  the  United 
States.  Appellant 's  answer  to  the  bill  admits,  that  the  judgment 
was  recovered  against  himself  and  Pratt  on  November  20,  1873, 
as  alleged  in  the  bill,  and  that,  on  October  1,  1891,  appellees 
instituted  proceedings  by  scire  facias  in  said  Superior  Court  to 
revive  said  judgment,  and  that  execution  was  issued  upon  the 
judgment  as  revived  and  returned  nulla  hana.  The  answer  also 
sets  out  in  full  all  the  proceedings  in  the  suit  to  revive  from  the 
praecipe  for  a  scire  facias  to  the  judgment  of  revival. 

Upon  the  hearing,  appellees  introduced  in  evidence  the  said 
proceedings  as  set  out  in  the  answer ;  the  appellant  introduced  no 
evidence  whatever,  but,  at  the  close  of  the  evidence  introduced 


Sec.  2.]  bickerdike  v.  allen.  135 

by  appellees,  made  a  motion  to  dismiss  the  bill,  upon  the  alleged 
grounds,  that  the  court  had  no  power  to  enter  a  judgment  of 
revival  for  want  of  jurisdiction  over  appellant,  and  that  the 
said  section  26  was  unconstitutional  as  aforesaid;  and  also  be- 
cause of  certain  alleged  defects  in  the  affidavit  for  publication 
and  the  publication  notice  in  the  scire  facias  proceeding.  This 
motion  was  overruled,  but  no  exception  is  shown  by  the  bill  of 
exceptions  to  have  been  taken  to  the  order  overruling  it. 

The  court  below  rendered  a  decree,  finding  that  the  original 
judgment  remained  due  and  unpaid ;  that  it  had  been  duly  and 
regularly  revived :  that  the  proceedings  by  scire  facias  to  revive 
it  were  valid  and  legal,  and  directed  that  there  should  be  paid 
out  of  the  proceeds  of  the  sale  of  said  stock  the  original  judg- 
ment and  interest  from  the  date  of  its  rendition,  and  the  costs 
accrued  both  in  the  original  proceeding  and  in  the  scire  facias 
proceeding.     From  this  decree  the  present  appeal  is  prosecuted. 

First,  as  to  the  alleged  unconstitutionality  of  section  26 : 
That  section  is  as  follows :  "It  shall  not  be  necessary  to  file  a 
declaration  in  any  scire  facias  to  revive  a  judgment  or  foreclose 
a  mortgage,  in  any  court  of  record  in  this  State.  And  in  any 
such  case  of  scire  facias  to  revive  a  judgment,  where  the  plaintiff 
in  the  judgment  sought  to  be  revived,  or  his  attorney,  shall  file 
an  affidavit  in  the  office  of  the  clerk  of  the  court  out  of  which 
the  writ  issues,  showing  that  the  defendant  in  the  scire  facias 
resides  or  has  gone  out  of  the  State,  or  is  concealed  within  the 
State,  so  that  process  cannot  be  served  on  him,  and  stating  the 
place  of  residence  of  such  defendant,  if  known,  or  that  on  due 
inquiry  his  place  of  residence  cannot  be  ascertained,  then  in 
such  case  notice  to  the  defendant  may  be  given  by  publication 
and  mail,  in  the  same  manner  as  is  provided  by  statute  for  notice 
in  like  cases  in  chancery."  (2  Starr  &  Cur.  Stat.,  page  1789.) 
The  provision  for  notice  in  cases  in  chancery,  so  far  as  applicable, 
is  as  follows :  ' '  The  clerk  shall  cause  publication  to  be  made  in 
some  newspaper  printed  in  his  county  *  *  *  containing 
notice  of  the  pendency  of  such  suit,  the  names  of  the  parties 
thereto,  the  title  of  the  court,  and  the  time  and  place  of  the  return 
of  summons  in  the  case ;  and  he  shall  also,  within  ten  days  of 
the  first  publication  of  such  notice,  send  a  copy  thereof  by  mail, 
addressed  to  such  defendant  whose  place  of  residence  is  stated  in 
such  affidavit.     The  certificate  of  the  clerk,  that  he  has  sent  such 


136  PROCESS.  [Chap.  I. 

notice  in  pursuance  of  this  section,  shall  be  evidence."     (Rev. 
Stat.  111.,  Chap.  22,  §12.)i 

Where  the  defendant  is  a  non-resident  of  the  State  of  Illinois, 
and  the  proceeding  is  not  in  rem,  but  in  personam,  the  publica- 
tion of  notice  and  the  mailing  of  a  copy  thereof  to  an  address 
outside  of  the  State,  without  personal  service  or  appearance, 
would  not  give  to  a  court  in  this  State  such  jurisdiction  over  the 
person  of  the  defendant  as  to  make  a  judgment  in  personam 
against  him  valid  and  impervious  to  collateral  attack,  except  in 
cases  affecting  the  personal  or  civil  status  and  capacities  of  the 
citizen  of  the  State  towards  a  non-resident,  as,  for  instance,  in 
reference  to  the  dissolution  of  the  marriage  relation,  and  except 
in  cases  where  another  mode  of  service  than  that  of  personal 
service  may  be  regarded  as  having  been  assented  to  in  advance, 
as,  for  instance,  the  appointment  of  agents  in  the  State  to 
receive  service,  and  requirements  as  to  service  upon  corporations 
created  by  the  State.     (Pennoyer  v.  Neff,  95  U.  S.  714.) 

A  proceeding  in  rem  is  not  merely  a  direct  proceeding  against 
property,  but  any  action  between  the  parties  where  the  direct 
object  is  to  reach  and  dispose  of  property  owned  by  them  or  of 
some  interest  therein.  For  example,  suits  by  attachment  against 
the  property  of  debtors,  suits  for  the  partition  of  land,  to  fore- 
close mortgages,  to  enforce  liens  or  contracts  respecting  property, 
may  be  regarded  as  proceedings  in  rem  so  far  as  they  affect 
property  in  the  State.  (Penoyer  v.  Neff,  supra.)  In  such  pro- 
ceedings in  rem,,  where  the  object  is  to  reach  and  dispose  of 
property  within  the  State,  or  of  some  interest  therein,  service 
by  publication,  or  in  some  mode  other  than  upon  the  person, 
may  be  sufficient.  The  theory  of  the  law  is,  that  when  a  man's 
property  is  brought  under  the  control  of  the  court  by  seizure, 
such  seizure  informs  and  notifies  him  of  the  proceedings  taken 
for  its  .sale  or  condemnation.  In  such  cases  constructive  notice 
is  permitted  and  becomes  effectual  solely  by  reason  of  the  attach- 
ment or  seizure  of  the  property.  The  jurisdiction  of  the  court 
to  determine  the  obligations  of  the  defendant  constructively 
notified  is  incidental  to  its  jurisdiction  over  the  property.  The 
judgment  has  no  effect  beyond  the  property  reached  or  affected 
in  that  suit.     "Jurisdiction  is  acquired  in  one  of  two  modes: 

1  The  publication  in  this  ease  was       that    the    defendant   had    concealed 
based  on  an  afladavit  to  the  effect       himself  to  avoid  service,  see  p.  105. 


Sec.  2.]  bickerdike  v.  allen.  137 

First,  as  against  the  person  of  the  defendant  by  the  service  of 
process ;  or,  secondly,  by  a  procedure  against  the  property  of  the 
defendant  within  the  jurisdiction  of  the  court."  (Boswell's 
Lessee  v.  Otis,  9  How.  336.) 

"But,"  says  Mr.  Justice  Field  in  Pennoyer  v.  Neff,  supra, 
' '  where  the  entire  object  of  the  action  is  to  determine  the  personal 
rights  and  obligations  of  the  defendants,  that  is,  where  the  suit 
is  merely  in  personam,  constructive  service  in  this  form  upon  a 
non-resident  is  ineffectual  for  any  purpose.  Process  from  the 
tribunals  of  one  State  cannot  run  into  another  State,  and 
summon  parties  there  domiciled  to  leave  its  territory  and  respond 
to  proceedings  against  them.  Publication  of  process  or  notice 
within  the  State  where  the  tribunal  sits  cannot  create  any  greater 
obligation  upon  the  non-resident  to  appear.  Process  sent  to  him 
out  of  the  State,  and  process  published  within  it,  are  equally 
unavailing  in  proceedings  to  establish  his  personal  liability." 
(See,  also,  Webster  v.  Reid,  11  How.  437.) 

So  far  as  section  26  applies  to  defendants  residing  out  of  this 
State  we  do  not  see  how  it  can  be  upheld  as  a  valid  law  in  view 
of  the  principles  hereinbefore  announced.  That  is  to  say,  where 
the  proceeding  by  scire  facias  is  instituted  to  revive  a  judgment 
rendered  against  a  non-resident,  the  judgment  of  revival  cannot 
be  regarded  as  valid,  if  such  non-resident  has  not  been  personally 
served,  or  has  not  entered  his  appearance,  but  has  only  been 
served  by  publication  and  the  mailing  of  a  notice  to  him  to  his 
residence  outside  of  the  State.  The  scire  facias  proceeding  to 
revive  a  judgment  is  not  a  proceeding  in  rem;  certainly  not, 
where  the  original  judgment  sought  to  be  revived  is  a  judgment 
in  personam.  Although  the  non-resident  may  receive  the  notice 
mailed  to  his  residence  out  of  the  State,  he  is  not  bound  to 
appear,  because  "no  State  can  exercise  direct  jurisdiction  and 
authority  over  persons  or  property  without  its  territory. ' '  (Pen- 
noyer V.  Neff,  supra.)  We  held,  in  Cloyd  v.  Trotter,  118  111. 
391,  that  service  out  of  the  State  by  copy  of  the  bill  and  notice 
in  a  chancery  ease,  so  far  as  property  in  this  State  was  sought 
to  be  affected,  would  give  the  court  jurisdiction  to  decree  con- 
cerning it,  but  not  to  render  a  personal  decree  against  the 
defendant  for  the  recovery  of  money  or  costs,  and  to  award  a 
general  execiition  again.st  him  for  the  collection  of  the  same. 

If  the  statute  provided  for  bringing  in  a  resident  of  the  State 
by  publication  of  the  notice  only  without  the  mailing  of  any 


138  PROCESS.  [Chap.  I. 

notice  to  him,  the  same  objection  might  lie  as  in  case  of  a 
non-resident.  A  judgment  in  personam  in  the  court  of  a  State 
against  one  of  its  citizens  who  is  not  served  with  process,  but 
is  served  by  publication  only,  cannot  be  valid,  except  in  cases 
coming  within  the  exceptions  already  indicated.  In  Webster 
V.  Reid,  supra,  it  was  said :  ' '  These  suits  were  not  proceedings 
in  rem  against  the  land,  but  were  in  personam  against  the  owners 
of  it.  Whether  they  all  resided  within  the  territory  or  not  does 
not  appear,  nor  is  it  a  matter  of  any  importance.  No  person 
is  required  to  answer  in  a  suit  on  whom  process  has  not  been 
served,  or  whose  property  has  not  been  attached."  So,  in 
Pennoyer  v.  Neff,  supra,  it  was  said,  that  such  judgments  were 
not  binding  in  the  State  where  rendered  any  more  than  they 
were  outside  of  such  State,  and  ^that,  since  the  passage  of  the 
fourteenth  amendment  to  the  Federal  Constitution,  their  enforce- 
ment in  the  State  could  be  resisted  "on  the  ground  that  pro- 
ceedings in  a  court  of  justice  to  determine  the  personal  rights 
and  obligations  of  parties,  over  whom  that  court  has  no  jurisdic- 
tion, do  not  constitute  due  process  of  law." 

But  this  statute  does  something  more  than  require  the  pub- 
lication of  the  notice ;  it  requires  a  copy  of  the  notice  to  be  sent 
by  mail  addressed  to  the  defendant  whose  place  of  residence  is 
stated  in  the  affidavit.  Suppose  that  a  defendant  resides  in  this 
State,  and  has  a  known  residence  here,  but  conceals  himself  so  that 
process  cannot  be  served  upon  him,  and  that  the  notice  specified 
in  the  statute  is  sent  to  him  by  mail.  If  he  receives  the  notice 
so  sent  he  has  received  personal  notice  just  as  much  as  though 
a  summons  was  served  upon  him  by  the  sheriff.  The  certificate 
of  the  clerk  is  made  proof  of  the  mailing  of  the  notice.  "Proof 
of  the  mailing  of  notices,  properly  addressed,  is  primu  facie 
evidence  of  their  having  been  received  by  the  party  addressed. ' ' 
(Meyer  v.  Krohn,  114  111.  574;  Young  v.  Clapp,  147  id.  176.) 
When,  therefore,  in  any  collateral  proceeding,  a  judgment  of 
revival  based  upon  notice,  given  through  the  mail  as  well  as  by 
publication  to  a  resident  of  the  State,  is  relied  upon,  it  is  prima 
facie  valid.  In  such  case  the  judgment  cannot  be  said  to  have 
been  rendered  without  jurisdiction  over  the  defendant.^     The 

2  The  validity  of  such  judgments  22.    But  see  Moss  v.  Fitch,  212  Mo. 

has  been  recognized  in  other  juris-  484;  De  la  Montanya  v.  De  la  Mon- 

dictions,  Bryant  v.   Shute,   147  Ky.  tanya,  112  Cal.  101. 
268;  Hamil  v.  Talbott,  72  Mo.  App. 


Sec.  2.]  bard  well  v.  collins.  139 

proceeding  by  scire  facias  to  revive  a  judgment  is  not  a  new  suit, 
but  merely  the  continuation  of  the  old  one.  It  does  not  determine 
the  obligations  of  the  defendant  to  the  plaintiff  as  involved  in 
the  original  controversy  and  as  settled  by  the  former  judgment, 
but  merely  seeks  a  revival  of  the  former  judgment  in  order  to 
have  execution  of  it.  The  defendant  cannot  show  any  matter, 
which  was  pleaded  or  might  have  been  pleaded  in  the  former 
action.  The  only  defenses,  which  can  be  set  up  in  the  scire  facias 
proceeding,  are  that  no  judgment  was  rendered,  or,  if  one  was 
rendered,  that  it  has  been  satisfied  or  discharged.  (21  Am.  & 
Eng.  Ency.  of  Law,  pages  855,  864 ;  Smith  v.  Stevens,  133  111. 
183.) 

Hence,  we  are  inclined  to  think  that  section  26,  taken  in  con- 
nection with  section  12  of  the  Chancery  act,  is  a  constitutional 
enactment  so  far  as  it  provides  for  service  by  publication  of 
notice  and  mailing  of  copy  thereof  to  residents  of  the  State, 
whose  residence  is  stated  in  the  affidavit. 


BARDWELL  v.  COLLINS. 

44  Minnesota,  97.     [1890.] 

Appeal  by  defendant  Henry  H.  Collins,  impleaded  with  Emilie 
Anderson  and  others,  from  an  order  of  the  District  Court  for 
Hennepin  County,  Young  and  Smith,  JJ.,  presiding,  refusing 
to  set  aside,  as  to  him,  a  judgment  by  default  in  an  action  to 
enforce  a  mechanic's  lien. 

Mitchell,  J.,  after  holding  that  the  statute  provided  for 
service  by  publication  without  regard  to  the  residence  of  the 
defendant :  ^  *  *  *  The  only  remaining  question,  therefore, 
is  whether  it  is  competent  for  the  legislature  to  authorize  such 

iGen.  St.  1878,  e.  81,  tit.  2,  §l28:  may    be    taken,    without    giving    se- 

' '  Service  by  publication  of  the  sum-  curity    as   to   those   parties,    at   the 

mons,    in    the   manner    provided    in  expiration  of  twenty  days  after  the 

section  five  of  title  one  of  this  chap-  completion   of   the   period   of  publi- 

ter  for  publication  of  the  notice  of  cation;  but  such  parties,  or  any  of 

sale  therein  specified,  may  be  made  them,   shall  be  permitted  to  appear 

upon  all  parties  to  the  action  against  and  defend,  upon  good  cause  shown, 

whom     no     personal     judgment     is  at  any  time  before  final  decree." 
sought;   and  in  such  case  judgment 


140  PROCESS.  •  [Chap.  I. 

service  in  such  actions  upon  residents  of  the  State  personally 
present,  and  capable  of  being  found  and  personally  served,  within 
its  jurisdiction.  Is  such  service  "due  process  of  law?"  In 
determining  this  question,  it  becomes  important,  first,  to  consider 
the  character  of  an  action  to  foreclose  a  mortgage.  It  is  not  an 
action  in  rem,  but  an  action  in  personam.  It  is  true  it  has  for 
its  object  certain  specific  real  property  against  which  it  is  sought 
to  enforce  the  lien  of  the  mortgage,  and  in  that  sense  it  partakes 
somewhat  of  the  nature  of  a  proceeding  in  rem,  but  not  differ- 
ently, or  in  any  other  sense,  than  do  actions  in  ejectment,  replevin, 
for  specific  performance  of  a  contract  to  convey,  to  determine 
adverse  claim  to  real  estate,  and  the  like.  The  rights  and  equities 
of  all  parties  interested  in  the  mortgaged  premises  are  to  be 
adjudged  in  the  action,  which  proceeds,  not  against  the  property, 
but  against  the  persons ;  and  the  judgment  binds  only  those  who 
are  parties  to  the  suit,  and  those  in  privity  with  them.  Whalley 
V.  Eldridge,  24  Minn,  358.  Next,  it  is  not  only  an  action  in 
personam,  but  is  also  strictly  judicial  in  its  character,  proceeding 
according  to  the  due  course  of  common  law,  like  any  other 
ordinary  action  cognizable  in  courts  of  equity  or  common  law. 
These  facts  are  important  for  the  reason  that  what  would  be 
due  process  of  law  in  one  kind  of  proceeding  might  not  be  such 
in  another,  for  reasons  that  will  be  alluded  to  hereafter. 

No  court  has  ever  attempted  to  give  a  complete  or  exhaustive 
definition  of  the  term  "due  process  of  law,"  for  it  is  incapable 
of  any  such  definition.  All  that  can  be  done  is  to  lay  down 
certain  general  principles  and  apply  these  to  the  facts  of  each 
case  as  they  arise.  ]\Ir.  Webster,  in  his  argument  in  the  Dart- 
mouth College  case,  gave  an  exposition  of  the  words  "law  of  the 
land"  and  "due  process  of  law,"  which  has  often  been  quoted  by 
the  courts  with  approval,  viz. :  ' '  The  general  law,  which  hears 
before  it  condemns ;  which  proceeds  upon  inquiry,  and  renders 
judgment  only  after  trial."  In  judicial  proceedings,  "due 
process  of  law"  requires  notice,  hearing  and  judgment.  It  does 
not  mean,  of  course,  the  general  body  of  the  law,  common  and 
statute,  as  it  was  at  the  time  the  constitution  took  effect ;  for 
that  would  deny  to  the  legislature  the  power  to  change  or  amend 
the  law  in  any  particular.  Neither,  on  the  other  hand,  does  "the 
law  of  the  land"  or  "due  process  of  law"  mean  anything  which 
the  legislature  may  see  fit  to  declare  to  be  such ;  for  there  are 
certain  fundamental  rights  which  our  system  of  jurisprudence 


Sec.  2.]  bard  well  v.  collins.  141 

has  always  recognized,  which  not  even  the  legislature  can  dis- 
regard in  proceedings  by  which  a  person  is  deprived  of  life, 
liberty  or  property ;  and  one  of  these  is  notice  before  judgment 
in  all  judicial  proceedings.     Although  the  legislature  may  at  its 
pleasure  provide  ncAV  remedies  or  change  old  ones,  the  power  is 
nevertheless   subject    to   the    condition   that   it   cannot   remove 
certain  ancient  landmarks,  or  take  away  certain  fundamental 
rights,  which  have  been  always  recognized  and  observed  in  judi- 
cial procedures.     Hence,  it  becomes  important,  in  determining 
what  kind  of  notice  should  constitute  "due  process  of  law"  in 
any  judicial  proceeding  affecting  a  man's  property,  to  ascertain 
what  notice  has  always  been  required  and  deemed  essentially 
necessary  in  actions  or  proceedings  of  that  kind,  according  to 
that  system  of  jurisprudence  of  which  ours  is  derivative.     In 
proceedings  in-  rem,  as  in  admiralty  and  the  like,  where  the 
process  of  the  court   goes  against  the  thing,  which  is  in  the 
custody   of   the   court   and   is   technically   the   defendant,    and 
persons  are  not  made  parties  to  the  suits  but  come  in  rather 
as  intervenors,  it  is  not  essential  to  the  jurisdiction  that  the 
persons  having  an  interest  in  the  thing  to  be  effected  by  the 
judgment  should  have  personal  notice  of  the  proceeding,  or  in 
fact  any  other  notice  than  such  as  is  implied  in  the  seizure  of 
the  thing  itself.     There  are  other  proceedings  in  the  nature  of 
proceedings  m  rem,  many  of  them  not  strictly  judicial,  and  none 
of  them  proceedings  according  to  the  course  of  common  law,  such 
as  the  probate  of  wills,  administration  on  the  estates  of  deceased 
persons,  the  exercise  of  the  right  of  eminent  domain,  the  exercise 
of  the  power  of  taxation,  which  affect  property  rights,  but  in 
which  personal  notice  to  persons  interested  in  the  subject  or 
object  of  the  proceedings  has  never  been  deemed  necessary.     Some 
form  of  substituted  service  of  notice,  as  by  publication,   has 
always,  from  considerations  of  public  policy  or  necessity,  been 
deemed  appropriate  to  such  proceedings,  and  hence,  as  to  them, 
"due  process  of  law."     But  we  think  that,  from  the  earliest 
period  of  English  jurisprudence  down  to  the  present,  as  well  as 
in  the  jurisprudence  of  the  United  States  derived  from  that  of 
England,  it  has  always  been  considered  a  cardinal  and  funda- 
mental principle  that,  in  actions  in  personam  proceeding  accord- 
ing to  the  course  of  common  law,  personal  service  (or  its  equiva- 
lent, as  by  leaving  a  copy  at  his  usual  place  of  abode)   of  the 
writ,   process   or   summons   must    be    made   on   all   defendants 


142  PROCESS.  [Chap.  I. 

resident  and  to  be  found  within  the  jurisdiction  of  the  court. 
We  do  not  mean  that  the  term  "proceeding  according  to  the 
course  of  the  common  law,"  as  used  in  the  books,  is  to  be  under- 
stood as  meaning,  necessarily  and  always,  personal  or  actual 
service  of  process;  for,  although  service  by  publication  is  of 
modern  origin,  there  has  always  been  some  mode  by  which  juris- 
diction has  been  obtained  at  common  law  by  something  amounting 
to  or  equivalent  to  constructive  service,  where  the  defendant 
could  not  be  found  and  served  personally.  But  what  we  do  mean 
to  assert  is  that  the  right  to  resort  to  such  constructive  or  sub- 
stituted service  in  personal  actions  proceeding  according  to  the 
course  of  the  common  law  rests  upon  the  necessities  of  the  case, 
and  has  always  been  limited  and  restricted  to  cases  where  per- 
sonal service  could  not  be  made  because  the  defendant  was  a 
non-resident,  or  had  absconded,  or  had  concealed  himself  for  the 
purpose  of  avoiding  service.  As  showing  what  means  were  re- 
sorted to  as  amounting  or  equivalent  to  constructive  service,  and 
how  strictly  it  was  limited  to  cases  of  necessity  by  both  courts  of 
common  law  and  courts  of  chancery,  reference  need  only  be  had 
to  3  Bl.  Comm.  283,  444. 

As  a  substitute  for  the  means  formerly  resorted  to  in  England 
in  such  eases,  most  of  the  American  states  have  adopted  service 
of  the  process  or  summons  bj^  publication.  But  we  have  found 
no  statute,  except  the  one  now  under  consideration,  which  has 
as.sumed  to  authorize  such  a  mode  of  service,  and  have  found 
no  case  where  its  validity  has  been  sustained  by  the  courts,  except 
as  to  defendants  who  could  not  be  found  within  the  jurisdiction, 
either  because  of  non-residence,  or  because  they  had  absconded 
or  concealed  themselves  to  avoid  the  service  of  process.  We 
think  this  will  be  found  true  in  every  instance,  from  the  earliest 
decisions  on  the  subject  down  to  the  latest  utterance  of  the 
Supreme  Court  of  the  United  States  in  Arndt  v.  Greggs,  134 
U.  S.  316  (10  Sup.  Ct.  Rep.  557),  in  which  that  court  took 
occasion  to  set  at  rest  some  misapprehensions  as  to  the  scope  of 
their  previous  decision  in  Hart  v.  Sansom,  110  U.  S.  151  (3  Sup. 
Ct.  Rep.  586).  We  think  it  would  be  a  surprise  to  the  bench 
and  the  bar  of  the  country  if  it  should  be  held  that  process  or 
summons  in  ordinary  civil  actions  might  be  served  on  resident 
defendants,  present  and  capable  of  being  found  within  the 
jurisdiction  of  the  court,  merely  by  publication  in  a  newspaper. 
The  dangers  and  abuses  that  w^ould  arise  from  such  a  practice 


Sec.  2.]  nelson  v.  c.  b.  &  q.  ry.  co.  143 

are  too  apparent  to  require  to  be  named  or  even  suggested.  So 
radical  a  departure  is  this  from  the  uniform  and  well  established 
ideas  of  what  constitutes  due  process  of  law  in  such  cases  that, 
although  this  act  has  been  on  the  statute  books  for  twenty-four 
years,  we  doubt  whether  one  lawyer  in  twenty  is  aware  of  its 
existence  ;  and  we  have  yet  to  hear  of  any  case,  except  the  present, 
where  any  one  has  ventured  to  act  upon  it. 

It  is,  in  our  judgment,  beyond  the  power  of  the  legislature  to 
disregard  so  fundamental  and  long-established  a  principle  of  our 
jurisprudence.  Service  by  publication,  under  such  circum- 
stances, is  not  "due  process  of  law,"  and  therefore  any  statute 
assuming  to  authorize  it  is  unconstitutional.  It  would  be  of 
little  use  to  cite  authorities  upon  a  subject  which  has  been  so 
much  and  so  often  discussed  in  its  many  phases,  as  each  case 
must  be  determined  upon  its  own  facts,  and  hence  the  decided 
cases  would  ordinarily  be  in  point  only  by  way  of  analogy.  See, 
however.  Brown  v.  Board  of  Levee  Com  'rs,  50  Miss.  468. 

Order  reversed. 


NELSON  V.  C.  B.  &  Q.  RY.  CO. 

225  Illinois,  197.      [1907.] 

Plaintiff  brought  an  action  on  the  case  against  the  C.  B.  &  Q. 
Railroad  Company,  an  Illinois  corporation,  and  being  unable  to 
obtain  ordinary  service  in  Kane  County,  because  the  defendant 
did  not  maintain  an  office  therein,  proceeded  by  publication  and 
mail  under  the  provisions  of  par.  5  of  the  Practice  Act,  now 
§  8,  chap.  110,  R.  S.,  1913.  On  the  motion  of  the  defendant 
the  court  quashed  the  service  and  dismissed  the  action,  and  the 
plaintiff  appealed.^ 

Mr.  Justice  Hand  delivered  the  opinion  of  the  court ;    *    *    * 

We  are  unable  to  discover  from  a  reading  of  these  sections  of 

the  statute  why  they  are  not  broad  enough  in  their  terms  to 

include  a  case  like  this,  or  any  other  action  at  law  which  may  be 

brought  against  an  incorporated  railroad  company,  where  no 

1  Statement  condensed. — Ed. 


144  PROCESS.  [Chap.  I. 

officer  or  agent  of  the  company  is  found  in  the  county  where 
the  suit  is  brought  with  whom  a  copy  of  the  summons  can  be 
left  to  effect  service  upon  the  railroad  company,  and  where  it 
appears  the  principal  office  of  the  railroad  company  is  located 
within  the  State  of  Illinois.     *     *     * 

We  are  clearly  of  the  opinion  the  statute  is  broad  enough  to 
cover  a  case  like  the  one  at  bar  if  the  legislature  has  power  to 
authorize  service  in  such  a  case  in  that  manner.  If,  however, 
under  no  circumstances  a  personal  judgment  in  an  action  at  law 
like  this  can  be  based  upon  a  service  of  process  by  publication 
and  mail,  then  the  service  of  process  here  was  bad  and  was 
properly  quashed — which  brings  us  to  consideration  of  the  ap- 
pellee 's  second  proposition.     *     *     * 

[The  opinion  here  reviews  Bimeler  v.  Dawson,  4  Scam.  536; 
Welch  V.  Sykes,  3  Gilra.  197 ;  Smith  v.  Smith,  17  111.  482 ;  Bicker- 
dike  V.  Allen,  157  111.  95 ;  Bardwell  v.  Collins,  44  Minn.  97.] 

Constructive  service  of  process,  it  is  said,  is  authorized  in  a 
certain  class  of  cases,  such  as  when  the  defendant  has  gone  out 
of  the  State,  or  when  he  cannot  be  found,  or  when  he  conceals 
himself  so  that  process  cannot  be  served  upon  him,  as  the  result 
of  necessity — that  is,  such  constructive  service  of  process  is  sub- 
stituted for  actual  service  of  process  when  actual  service  of 
process  cannot  be  had  upon  a  defendant.  In  this  case  actual 
service  could  not  be  had  upon  the  defendant  although  the  suit 
was  properly  brought  in  the  court  from  which  the  process  was 
issued  and  the  defendant  was  a  resident  of  and  was  in  the  State, 
and  the  question  here  is  narrowed  to  this:  Can  the  legislature 
provide  a  constructive  or  substituted  service  of  process  by  publi- 
cation and  mail,  in  lieu  of  actual  service  of  process,  in  a  case 
where  the  process  cannot  be  actually  served  upon  the  defendant 
in  the  county  where  the  statute  expressly  authorizes  the  suit  to 
be  commenced,  although  the  defendant  resides  and  is  in  the 
State?     *     *     * 

While  the  authorities  are  not  in  entire  harmony  upon  the 
subject,  the  Illinois  cases  and  the  greater  weight  of  authority 
clearly  establish,  we  think,  the  proposition  that  a  personal  judg- 
ment in  an  action  at  law  may  be  rendered  against  a  defendant 
residing  in  and  who  is  in  the  State  where  the  suit  or  proceeding 
is  pending,  who  has  been  notified  of  the  pendency  of  the  suit  by 
constructive  service  of  process,  where  it  appears  actual  service 
of  process  could  not  be  had  upon  the  defendant,  if  the  construe- 


I 


Sec.  2.]  nelson  v,  c.  b,  &  q.  ry.  co.  145 

tive  service  provided  for  was  required  to  be  had  in  such  manner 
that  the  reasonable  probabilities  were  that  the  defendant  would 
receive  notice  of  the  pending  action  or  proceeding  before  judg- 
ment or  decree  was  rendered  against  him. 

A  full  discussion  of  the  subject  of  the  right  of  a  court  to 
render  a  personal  judgment  or  decree  against  a  defendant  upon 
constructive  service  of  process  will  be  found  in  an  exhaustive 
note  to  the  case  of  Pinney  v.  Providence  Loan  and  Investment 
Co.  (Wis.),  50  L.  R.  A.  577.     The  learned  author,  on  page  584, 
says:     "As  is  shown  by  the  cases  cited  in  the  preceding  sub- 
division, the  court  cannot  acquire  jurisdiction,  by  constructive 
or  substituted  service  of  process,  to  render  a  personal  judgment 
against  a  non-resident  defendant  who  does  not  appear,  unless 
he  can  be  deemed  to  have  assented  to  such  mode  of  service ;  but 
the  rule  is  otherwise  with  respect  to  resident  defendants — at 
least  if  they  are  within  the  State  at  the  time  of  the  attempted 
service.     The  manner  of  serving  process   must  necessarily   be 
regulated  by  every  country  for  itself,  and  if  a  State  permits 
process  to  be  served  upon  one  of  its  own  citizens  by  the  leaving 
of  it,  in  his  absence,  at  his  domicile  with  an  adult  member  of  his 
household,  that  method  of  service  is  not  so  repugnant  to  the 
principles  of  natural  justice  that  a  foreign  tribunal  should  refuse 
to  recognize  it  and  treat  a  sentence  founded  on  it  as  a  nullity. 
*     *     *     The  following  cases  expressly  hold  that  it  is  competent 
for  the  legislature  to  authorize  personal  judgments  against  resi- 
dents of  the  State  upon  constructive  or  substituted  service  of 
process,  under  proper  conditions :     Betancourt  v.  Eberlin  (1882) , 
71  Ala.  461    (personal  judgment  in  attachment)  ;   Fleming  v. 
West  (1896),  98  Ga.  778,  27  S.  E.  157  (judgment  for  alimony)  ; 
Bimeler  v.  Dawson  (1843),  4  Scam.  536,  39  Am.  Dec.  430 ;  Bicker- 
dike  V.  Allen,  157  111.  95,  29  L.  R.  A.  782,  41  N.  E.  740;  Sturgis 
V.  Fay  (1861),  16  Ind.  429,  79  Am.  Dec.  440;  Beard  v.  Beard, 
21   Ind.   321    (obiter);  Weaver  v.   Boggs    (1873),   38  Md.   255 
(obiter)  ;  Harryman  v.  Roberts  (1879),  52  id.  65;  Continental 
Nat.  Bank  v.  Thurber,  74  Hun.  632,  26  N.  Y.  Sup.  956,  affirmed 
by  143  N.  Y.  648,  37  N.  E.  828;  Northcraft  v.  Oliver  (1889), 
74  Tex.  162,  11  S.  W.  1121;  Hinckley  v.  Kettle  River  Railroad 
Co.,  70  Minn.  105,  72  N.  W.  835." 

We  are  of  the  opinion  that  the  constructive  service  of  process 
provided  for  in  paragi*aph  5  of  the  Practice  Act,  when  taken  in 
connection  with  sections  12  and  13  of  the  Chancery  Act,  con- 

H.  T.  p.— 10 


146  PROCESS.  [Chap.  I. 

stitutes  due  process  of  law  when  it  appears,  as  it  must  before 
such  service  can  be  had,  by  the  return  of  the  of&cer,  that  the 
incorporated  railroad  company  against  which  the  suit  is  brought 
has  no  officer  or  agent  in  the  county  in  which  the  suit  is  brought 
with  whom  a  copy  of  the  summons  can  be  left  to  effect  service 
upon  the  railroad  company,  and  it  further  appears  the  prin- 
cipal office  of  the  railroad  company  is  in  the  State  of  Illinois.^ 

The  judgment  of  the  circuit  court  will  therefore  be  reversed 
and  the  cause  remanded  to  that  court  for  further  proceedings  in 
accordance  with  the  views  herein  expressed. 

Reversed  and  remanded. 


Section  3.     Returns. 
(a)  Substance  and  Form. 

HARRIMAN  v.  STATE. 

1  Missouri,  504.     [1825.] 

Pettibone,  J.  This  was  an  action  of  assumpsit  on  a  promis- 
sory note  given  to  the  State  for  loan  office  certificates,  borrowed 
by  the  defendants  at  the  loan  office  in  Chariton!  A  summons  was 
issued  out  of  the  Howard  Circuit  Court,  which  was  personally 
served  by  the  sheriff  of  Howard  County  upon  Harriman ;  Green 
and  Delany  were  returned  not  found.  An  alias  summons  issued 
to  the  County  of  Chariton  against  Green  and  Delany,  which  was 
returned  personally  served,  by  "Alexander  Trent,  deputy  sher- 
iff;" Harriman  appeared  and  pleaded,  and  the  issues  were  found 
against  him ;  Green  and  Delany  were  called,  but  came  not.  Their 
default  was  entered,  the  damages  assessed  against  them,  and 
a  joint  judgment  entered  against  all  three  of  the  defendants. 
It  is  contended  that  this  judgment  is  erroneous  inasmuch  as  there 
is  no  legal  evidence  of  any  service  of  the  summons  upon  Green 

2  Compare :  Pinney  v.  Ins.  Co.,  106  lie  officer,  where  there  had  been  a 

Wis.   396    (50   L.   E.   A.    577),   an-  failure  to  file  a  list  of  its  own  offi- 

notated  case,  holding  void  a  statute  cers  on  whom  service  could  be  had. 

providing  for  service  on  a  corpora-  But    see    Ex    parte    Schallenberger, 

tion  by  delivery  of  copy  to  a  pub-  96  U.  S.  369. 


Sec.  3.]  ogle  v.  coffey.  147 

and  Delany ;  the  return  by  the  deputy  sheriff  in  his  own  name, 
being  no  legal  evidence.  Although  the  deputy  may  do  any  act 
which  the  principal  sheriff  can,  yet  the  law  is  well  settled  that 
every  act  must  be  done  in  the  name  of  the  sheriff.  This  return 
is,  therefore,  bad,  and  affords  no  evidence  of  any  regular  service 
of  the  summons  upon  Green  and  Delany.  We  have  already 
decided  that  the  return  of  the  process  constitutes  a  part  of  the 
record  upon  which  error  will  lay.  The  judgment,  as  against 
Green  and  Delany,  is,  therefore,  clearly  erroneous.  As  against 
Harriman,  the  judgment  would  have  been  good,  had  it  been 
several;  but  being  entire  and  joint  against  all  the  defendants, 
if  it  is  bad  as  to  one  it  is  bad  as  to  all :  vide  Bac.  Abr.,  tit.  Error, 
letter  M.,  p.  500.  The  judgment  of  the  Circuit  Court  must, 
therefore,  be  reversed,  with  costs,  and  the  cause  remanded,  to  be 
further  proceeded  in  according  to  law. 


OGLE  V.  COFFEY. 

2  Illinois,  239.     [1835.] 

Smith,  Justice,  delivered  the  opinion  of  'the  court : 

This  was  an  action  of  debt  on  a  judgment  rendered  in  the 
State  of  Kentucky.  Judgment  was  rendered  by  default  in  the 
Madison  Circuit  Court. 

The  principal  error  assigned  is  the  want  of  personal  service 
of  the  summons  on  the  defendant.  The  return  of  the  sheriff 
is  not  in  compliance  with  the  provision  of  the  law  directing  the 
manner  of  making  the  service  and  return  by  the  sheriff.  The 
return  of  the  sheriff  is,  "Executed  October  18,  1832,  as  com- 
manded within." 

Whether  the  date  specified  is  intended  for  the  date  of  the 
day  of  service,  or  is  the  day  on  which  the  summons  is  returned 
is  wholly  uncertain.  The  manner  of  making  the  service  is  still 
more  doubtful.  Whether  it  was  by  reading  the  summons  to  the 
defendant  or  by  delivering  a  copy,  is  left  to  conjecture,  and  it  is 
impossible  to  say  which  course  was  adopted,  or  whether  either 
was  pursued. 

The  case  falls  directly  within  the  rule  laid  down  in  the  cases 


148  PROCESS.  [Chap.  I. 

of  Wilson  V.  Greathouse  and  Clemson  and  Hunter  v.  Harani, 
decided  in  June  term,  1835.     (Ante  174,  176.) 
The  judgment  is  reversed  with  costs.^ 


HAMMOND  V.  OLIVE. 

44  Mississippi,  543.      [1870.] 

On  writ  of  error  to  a  judgment  by  default. 

SiMRALL,  J.  It  is  complained  in  this  court  that  there  was  not 
a  sufificient  service  of  the  writ  on  Hammond.  It  has  been 
established  by  a  number  of  cases  in  this  court  that  the  return 
of  the  officer  on  the  summons  must  show  affirmatively  a  com- 
pliance with  the  requirement  of  the  statute.  If  practicable,  he 
must  make  personal  service,  and  before  he  can  resort  to  the 
secondary  mode  by  leaving  a  copy  at  the  domicile  of  the  de- 
fendant, he  must  declare  in  his  return  that  the  party  ' '  could  not 
be  found."  Foster  v.  Simmons,  40  Miss.  585,  citing  the  cases, 
and  many  others  subsequent,  not  necessary  to  be  referred  to. 
To  make  a  service  by  "copy  at  the  defendant's  usual  place  of 
abode"  complete,  the  return  must  show  that  every  condition 
of  the  statute  has  been  complied  with.  1st.  It  must  declare  that 
the  defendant  ' '  could  not  be  found. ' '  2d.  That  the  copy  was  left 
with  the  wife,  or  some  free  white  person  above  sixteen  years  of 
age.  3d.  If  there  be  no  free  white  person  there  willing  to  receive 
the  same,  then  the  copy  may  be  left  at  some  public  place  at  tlie 
dwelling  house.  The  statute  regards  the  three  modes  of  service 
in  the  order  named,  as  gradations.  The  second  cannot  be 
adopted,  if  the  first  can  be  made,  nor  the  last,  until  both  the  others 
have  failed,  and  the  office  should  manifest,  if  he  adopts  the  last 
mode,  by  hi.s  endorsement  on  the  writ  of  "his  acts  under  it," 
that  he  could  not  make  personal  service  because  the  defendant 
could  not  be  found,  that  he  did  not  leave  a  copy  with  the  wife, 
or  some  other  person,  etc.,  because  no  such  person  was  at  the 
"abode"  or  would  accept  the  copy.  We  have  been  thus  minute 
in  the  exposition  of  this  subject  (although  it  would  seem  to  be 

1  And  so  where  return  failed  to 
show  time  of  service,  Clemson  v. 
Hamm,  2  111.  176. 


II 


Sec.  3. J  hammond  v.  olive,  149 

unnecessary),  in  the  hope  that  the  officers  charged  with  this 
duty  may  be  clearly  instructed  as  to  its  performance. 

There  are  two  specific  imperfections  in  this  return  of  the 
sheriff:  1st.  ''W,  J.  Hammond,"  with  whom  the  copy  was  left, 
is  not  said  to  be  a  "free  white  person,"  whatever  may  be  thought 
of  the  necessity  of  a  change  of  the  statute  in  this  particular, 
because  of  the  altered  condition  of  the  country.  It  is  the  simple 
duty  of  this  court  to  expound  the  law  as  it  is  written — referring, 
where  it  properly  belongs,  modifications  and  amendments  to 
legislative  wisdom.  The  statute  of  Illinois  is  in  its  text  almost 
identical  with  ours,  "the  copy  may  be  left  at  the  usual  place  of 
abode  with  some  white  person  of  the  family, ' '  etc.,  is  its  language. 
In  Cost  V.  Rose,  17  111.  277,  the  return  omitted  to  describe  the 
person  with  w^hom  the  copy  was  left  as  "white,"  this  was  held 
to  be  insufficient.  In  Thurmond  v.  Griggs,  2  Scamm.  366,  the 
return  was  defective  because  the  "person"  was  not  said  by  the 
officer  to  be  "of  the  family." 

2d.  This  return  is  defective  because  the  officer  does  not  nega- 
tive his  ability  to  make  personal  service.  The  words,  "he  being 
absent,"  in  their  connection  with  the  context,  import  that  the 
defendant  was  not  "at  home" — was  absent  from  "his  place  of 
abode."  This  may  be  true,  but  it  does  not  follow  that  because 
of  such  absence  ' '  he  could  not  be  found ; "  he  might  have  been 
at  his  nearest  neighbor,  or  at  the  county  town,  and  it  might  have 
been  entirely  feasible  for  the  sheriff  to  have  "found  him."  The 
words  "he  being  absent,"  are  not  the  equivalent  of  "could  not 
be  found. ' '  The  officer  is  guilty  of  a  palpable  violation  of  duty 
under  the  law,  to  substitute  the  secondary  service  by  copy,  at  the 
"abode,"  if  he  could,  with  the  use  of  diligence,  make  personal 
service.  Nor  do  we  doubt  his  liability  to  an  action  for  damages, 
if  it  was  in  his  power  to  make  a  personal  service,  and  he  failed 
to  do  so,  and  thereby  injury  resulted  to  the  plaintiff. 

The  judgment  is  reversed  and  cause  remanded. ^ 

1  Accord :     Settlemeyer     v.     Sulli-  fendant.     We  shall  consider  the  ob- 

van,  97  U.  S.  444,  ante   p.  52.  jections  to  this  service  as  presented 

Compare:  "Wright,  C.  J.,  in  Neally  in    the    argument.      The    return    of 

V.   Eedman,   5   la.    386:    The   errors  service  is  as  follows: 
assigned    relate    alone    to    the    suf-  "Received      the      within      notice, 

ficiency  of   the  service  of  the  orig-  April    14th,    A.    D.,    1857,    and    re- 

inal  notice,  to  give  the  court  below  turn  the  within,  served  on  Eezin  A. 

jurisdiction    of    the    person    of    de-  Eedman,  by  leaving  a  written  and 


150  PROCESS.  [Chap.  I. 

BOTSFORD  V.  0 'CONNER. 

57  Illinois,  72.     [1870.] 

Ejectment  for  a  tract  of  land  to  which  the  defendant  claimed 
title  under  a  judicial  sale.  The  judgment  below  was  for  the 
plaintiff.! 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court : 

Was  the  service  on  Charles  R.  and  Mary  sufficient  to  give  the 
court  jurisdiction  of  their  persons,  so  as  to  render  a  decree  under 
which  they  could  be  divested  of  their  title  to  this  property  ?  The 
return  is,  "served  this  writ  on  the  within  named  Mary  0 'Conner 
and  Charles  R.  0 'Conner,  the  others  not  found  in  my  county,  the 
26th  day  of  August,  1858."  This  return  fails  to  state  how  the 
writ  was  served ;  whether  by  copy,  by  reading,  by  posting  notice 
or  otherwise,  does  not  appear. 

To  give  the  court  jurisdiction  of  the  persons  of  defendants,  a 
legal  service  upon  them  is  necessary.  The  mode  of  service  of 
summons,  when  not  otherwise  provided  by  statute,  is  by  reading 
the  same  to  the  defendants,  and  to  each  of  them,  and  the  return 
should  show  the  time  when,  upon  whom,  and  the  manner  in  which, 
service  was  made,  and  unless  it  thus  appeared,  the  court  failed  to 

certified  copy  of  the  same  with  ^f'ar-  substituted  service.  The  diligence 
garet  Ann  Eedman,  she  being  a  used  is  not  required  to  be  stated  in 
member  of  E.  A.  Redman's  family,  the  return.  If  the  officer  returns 
and  over  the  age  of  fourteen  years,  that  the  defendant  was  not  found 
and  at  his  usual  place  of  residence,  in  his  county,  he  is  presumed  to 
in  the  town  of  Marengo,  Iowa  have  used  the  necessary  diligence, 
county,  Iowa,  said  R.  A.  Eedman  not  If  he  did  not  in  fact,  and  def end- 
being  found  in  my  county  at  the  ant  is  injured  thereby,  he  has  his 
time;  this  the  14th  day  of  April,  remedy;  but  such  failure  cannot 
A.  D.  1857.  vitiate  the  return.  It  is  true  that 
"Jas.  Crenshaw.  he  served  the  notice  by  leaving  a 
* '  Sheriff,  Iowa  County,  Iowa. "  copy  on  the  same  day  he  received  it, 

The   notice  was   made   returnable  and    this,    it   is   urged,   is   sufficient 

to  the  May  term,  1857,  of  the  Iowa  evidence  that  he  made  no  effort  to 

District     Court,     which    commenced  serve  the  defendant  personally.    But 

on  the  4th  day  of  that  month,  and  it  may  have  been  that  he  knew  per- 

was  directed  to  R.  A.  Redman.  sonally     that     defendant     was     not 

To    this    service    it    is    first    ob-  within  his  county,  and  that  a  strict 
jected   that   it   does   not   show   that  regard  to  his  duty  required  him  to 
the     officer     exercised     proper     dili-  serve  the  notice  at  once,  by  copy, 
gence  to  serve  defendant  personally,  i  The    statement    has    been    con- 
before   resorting  to   what  is   styled  densed. — Ed. 


Sec.  3.]  botsford  v.  o'conner.  151 

acquire  jurisdiction.  Ball  v.  Sliattuck,  16  111.  299.  And  in  the 
case  of  Belingall  v.  Gear,  3  Scam.  575,  it  was  held  that  it  must 
affirmatively  appear,  from  the  officer's  return,  that  there  was  a 
legal  service,  and  that  it  was  such  service  as  gave  the  court 
jurisdiction  over  the  person  of  the  defendant. 

But  appellant  contends  that  the  decree  cures  the  defective  serv- 
ice ;  that  it  recites  that  it  was  shown  to  the  court  that  due  service 
of  process  was  had  upon  the  two  minor  defendants,  and  that  the 
decree  can  not  be  contradicted  by  the  summons  and  return.  It 
is  undeniably  true,  that  this,  like  any  other  finding  of  the  court, 
can  never  be  contradicted  in  a  collateral  proceeding,  by  parol,  or 
other  evidence  outside  of  the  record  in  that  proceeding.  It,  how- 
ever, may  by  other  portions  of  the  same  record.  But  such  a 
finding  is  conclusive,  in  a  collateral  proceeding,  until  thus 
rebutted. 

In  the  case  of  Clark  v.  Thompson,  47  111.  25,  we  said :  "It  is, 
however,  insisted  that  when  a  court  of  general  jurisdiction  has 
proceeded  to  adjudicate  a  cause,  we  must  presume  that  the  court 
had  evidence  that  there  was  such  service,  or  appearance,  as  con- 
fers jurisdiction  of  the  person;  that  the  question  of  jurisdiction 
is  primary,  and  must  first  be  determined.  This  is  no  doubt  true, 
in  all  collateral  proceedings,  but  is  liable  to  be  rebutted.  If  the 
record  shows  service  which  is  insufficient,  and  the  record  fails  to 
show  that  the  court  found  that  it  had  jurisdiction,  then  the  pre- 
sumption is  rebutted,  and  it  must  be  held  that  the  court  acted 
upon  the  insufficient  service.  When  a  summons  and  return  appear 
in  the  record,  and  there  is  no  finding  of  the  court  from  which  it 
may  be  inferred  that  there  was  other  service,  or  appearance,  it 
will  be  presumed  that  the  court  acted  upon  the  service  which 
appears  in  the  record.  In  this  case,  the  summons  and  acknowl- 
edgment of  service  were  not  sufficient  to  confer  jurisdiction  over 
the  minor  defendants,  and  unless  jurisdiction  was  otherwise 
obtained  the  decree,  as  to  them,  was  a  nullity  and  may  be  attacked 
in  a  collateral  proceeding. ' ' 

This  is  directly  to  the  point,  and  fully  embraces  this  question, 
and  must  be  held  to  govern  it. 

The  return  of  service  being  insufficient,  we  must  hold  that  the 
court  below  had  no  jurisdiction  of  the  persons  of  the  minor  heirs, 
against  whom  this  summons  was  issued  and  the  decree  rendered. 

Where  the  service  is  by  summons,  verbal  testimony  can  not  be 
received,  to  prove  or  aid  it.     That  can  be  shown  alone  by  the 


152  ^  PROCESS.  [Chap.  I. 

officer's  return.2  It  is  no  doubt  otherwise  where  service  is  by 
publication,  when  parol  evidence  may  be  received  to  prove  that 
the  notice  was  published. 

The  service  appearing  in  the  record  was  defective  in  not  show- 
ing the  manner  in  which  it  was  made,  and  as  parol  evidence  could 
not  be  rightfully  heard  to  aid  it,  we  can  not  presume  the  court 
acted  on  other  evidence  than  the  return.  It  therefore  rebuts  the 
finding  that  there  was  service. 


KNOWLES  V.  GAS  &  COKE  CO. 

86  V.  S.  58.      [1873.] 

Error  to  the  Circuit  Court  for  the  District  of  Minnesota, 
The  Logansport  Gas,  Light  and  Coke  Company  brought  an 
action  in  the  court  below,  against  Alfred  Knowles,  on  a  judg- 
ment recovered  by  it  against  the  said  Enowles  and  one  Thomas 
Harvey,  in  the  Circuit  Court  for  Cass  County,  Indiana.  The 
defense  to  the  action  now  brought  was  that  that  court  did  not 
have  jurisdiction  of  the  person  of  the  defendant.  The  record 
of  the  former  judgment  was  produced  on  the  trial  and  was  some- 
what anomalous.  Three  defendants  were  sued  in  the  Cass  County 
Court — a  certain  J.  W.  Bain,  Knowles  and  Harvey — none  of 
whom  resided  in  Indiana.  Bain  was  served  with  process  in  New 
York,  and  after  a  long  struggle  to  get  the  proceedings  dismissed 
as  to  himself,  removed  the  cause  into  the  Circuit  Court  of  the 
United  States,  under  the  act  of  1866,  and  obtained  a  judgment 
in  his  favor.  The  cause  was  then  remanded  by  the  Cass  County 
Court  and  judgment  by  default  was  rendered  against  Knowles 
and  Harvey.  In  some  respects  the  proceedings  seemed  to  have 
been  conducted  as  a  suit  on  attachment,  the  property  of  the 

2  Madison  County  Bank  v.  Swan,  Mich.  155,  holding  that  the  error  of 

79   Mo.  527.  entering  a  default  on  an  insufficient 

Compare:  Jones  v.  Brick  Co.,  120  return,  could  not  be  cured  by  amend- 

Ga.  321,  in  which  it  is  said  that  it  ment  of  the  return,  for  the  reason 

is   the   fact   of   service   rather   than  that  until  a  proper  return  was  made 

the    proof    thereof    by    the    return  the    defendant    was    not    bound    to 

which  is  of  actual  importance.  appear. 

But    see    Denison    v.    Smith,    33 


Sec.  3.]  knowles  v.  gas  &  coke  co.  153 

defendants  (who  resided  in  Minnesota)  being  attached,  and  other 
creditors  being  allowed  to  come  in  to  participate  in  the  proceeds. 
Nevertheless  the  record  of  the  proceedings  contained,  amongst 
other  things,  the  copy  of  a  summons  in  the  case,  issued  to  the 
sheriff  of  Cass  County,  against  all  the  defendants,  and  a  return 
thereto  in  the  following  words : 

"  I  do  hereby  certify  that  I  served  the  within  writ,  on  the  14th 
day  of  September,  1865,  upon  Alfred  Knowles  and  Thomas  Har- 
vey, personally,  by  reading  the  same  to  them.  And  I  further 
certify  that  J.  W.  Bain  cannot  be  found  in  my  bailiwick. "    *    *    * 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

Upon  the  first  point,  that  the  return  was  insufficient,  the  plain- 
tiff in  error  relies  on  a  decision  of  Mr.  Justice  Nelson  at  the 
circuit,  in  the  case  of  Allen  v.  Blunt,  in  which  it  is  supposed  to 
have  been  held  that  a  return  of  service  by  the  United  States 
marshal,   without   showing  that   the   service   was   made   in  his 
district,  was  insufficient  to  give  the  court  jurisdiction  of  the 
person.     What  Justice  Nelson  held  in  that  case  was  this :     That 
inasmuch  as  the  eleventh  section  of  the  Judiciary  Act  declares 
that  "no  suit  shall  be  brought  before  either  of  said  courts  against 
an  inhabitant  of  the  United  States,  by  any  original  process  in 
any  other  district  than  that  whereof  he  is  an  inhabitant,  or  in 
which  he  shall  be  found  at  the  time  of  serving  the  writ ; ' '  there- 
fore, the  jurisdiction  of  said  courts  depends  on  service  or  in- 
habitancy in  the  district,  one  of  which  should  appear  of  record ; 
and  inasmuch  as  the  record  in  that  case  contained  no  allegation 
on  the  subject  and  the  jurisdiction  of  the  court  depended  entirely 
on  the  marshal's  return  to  the  process,  the  return  was  insufficient 
to  give  it.     This  authority,  therefore,  is  not  in  point.     The  case 
was  in  the  United  States  Court,  and  depended  upon  the  peculiar 
phraseology  of  the  act  of  Congress  referred  to  therein ;  whereas 
the  case  in  Cass  County,  now  under  consideration,  was  in   a 
State  Court ;  and  it  is  familiar  law  that  a  court  of  general  juris- 
diction will  be  presumed  to  have  had  jurisdiction  of  the  cause 
and  the  parties  until  the  contrary  appears.     In  our  judgment, 
therefore,  the  return,  on  its  face,  shows  no  ground  of  error.     It 
will  be  presumed  that  the  service  was  made  in  the  proper  county. 
But  the  defendant  also  offered  to  prove  by  himself  and  Harvey 
that  neither  of  them  had  ever  in  fact  been  served  with  process, 
and  that,   in   conseciuence,   the   court   had   never,   as  to   them, 
acquired  jurisdiction  of  the  person. 


154  PROCESS.  [Chap.  I. 

As  this  subject  has  lately  been  considered  by  us  in  the  case  of 
Thompson  v.  Whitman,  it  is  unnecessary  to  go  over  the  subject 
again.  In  our  opinion  the  defendant  had  a  right  to  show  by 
proof  that  he  had  never  been  served  with  process,  and  that  the 
Circuit  Court  of  Cass  County  never  acquired  jurisdiction  of  his 
person.  As  this  was  refused  him  on  the  ground  that  the  evidence 
was  inadmissible,  the  judgment  must  be  reversed.  We  do  not 
mean  to  say  that  personal  service  is  in  all  cases  necessary  to 
enable  a  court  to  acquire  jurisdiction  of  the  person.  Where  the 
defendant  resides  in  the  State  in  which  the  proceedings  are  had, 
service  at  his  residence,  and  perhaps  other  modes  of  constructive 
service,  may  be  authorized  by  the  laws  of  the  State.  But  in  the 
case  of  non-residents,  like  that  under  consideration,  personal 
service  cannot  be  dispensed  with  unless  the  defendant  voluntarily 
appears. 


Judgment  reversed,  and  a 


Yenire  de  novo  awarded. 


(b)  Falsifying. 

BARR  V.  SATCHWELL. 

2  Strange,  813.      [1729.] 

A  scire  facias  was  returnable  on  the  general  return  day  (which 
was  Sunday)  and  not  served  till  the  Monday.  On  affidavit 
whereof  Sergeant  Whitaker  moved  to  set  it  aside,  the  sheriff 
having  returned  a  scire  feci.  Sed  per  curiam,  if  that  be  a  false 
return,  the  defendant  will  have  his  action  against  the  sheriff. 
But  we  will  not  try  the  truth  of  the  return  on  a  motion  to  set 
aside  the  proceedings.^ 


GOUBOT  V.  DE  CROUY. 

1  Cromptan  &  Meeson,  772.     [1833.] 

In  this  ease  the  sheriff  returned  to  a  capias  against  the  de- 
fendant, that  he  was  not  to  be  found  in  his  bailiwick  from  the 

1  See  also  Eex  v.  Elkins,  4  Burr. 
2129. 


Sec.  3.]  Columbian  granite  co.  v.  townsend.  155 

time  of  the  delivery  of  the  writ  until  the  18th  of  February ;  and 
that  upon  that  day  and  until  the  return,  the  defendant  was  and 
yet  is  in  the  service  of  the  Sicilian  minister  at  the  British  court 
as  a  domestic  servant. 

Busby  moved  to  set  aside  the  return  on  strong  affidavits,  show- 
ing fraud  and  collusion  between  the  sheriff's  officer  and  the  de- 
fendant; that  the  defendant  was  in  trade;  that  he  had  said  he 
was  endeavoring  to  get  attached  to  the  embassy ;  and  that  he  had 
been  taken  and  collusively  discharged  by  the  officer, 

Bailey,  B.  We  cannot  interfere  upon  motion.  Your  only 
course  is  by  bringing  an  action  against  the  sheriff  for  a  false 
return.  We  cannot  investigate  the  truth  of  the  return  on  affi- 
davits. 

Rule  refused. 


COLUMBIAN  GRANITE  COMPANY  v,  TOWNSEND. 

74  Vennont,  183.     [1902.] 

Taft,  C.  J.  The  defendant  undertakes  to  impeach  the  officer's 
return,  which  is  good  on  its  face,  by  a  plea  in  abatement,  which 
is  demurred  to. 

Nothing  is  better  settled  than  that  an  officer's  return  is  con- 
clusive between  the  parties,  except  in  a  proceeding  to  set  it  aside, 
Yatter  v.  Pitkin  &  Miller,  72  Vt.  255,  47  Atl.  787.  Mr.  Gould 
says  that  a  defendant  cannot  falsify  such  a  return  by  plea  in 
abatement,  but  must  resort  to  his  remedy  against  the  officer,  if 
it  be  false.     Gould's  PI.,  chap.  V,  §  135, 

In  Barr  v.  Satchwell,  2  Stra,  813,  a  scire  facias  was  return- 
able on  the  general  return  day,  which  was  Sunday,  and  not 
served  till  the  Monday.  On  affidavit  whereof  Sergeant  Whitaker 
moved  to  set  it  aside,  the  sheriff  having  returned  a  scire  feci. 
Sed  per  curiam:  "If  there  be  a  false  return,  the  defendant  will 
have  his  action  against  the  sheriff.  But  we  will  not  try  the  truth 
of  the  return  on  a  motion  to  set  aside  the  proceedings." 

The  defendant  seeks  to  avoid  this  rule,  the  plaintiff  objecting, 
by  reason  of  a  stipulation  below  that  "no  question  shall  be  raised 
as  to  the  form  of  the  plea,  but  that  the  question  for  the  court  to 
consider  shall  be,  w^hether,  upon  the  facts  set  forth  in  the  plea, 


156  PROCESS.  [Chap.  I. 

there  was  a  service  of  the  writ. ' '  But  this  cannot  be.  When  the 
parties  go  into  special  pleadings,  the  rule  is  universal  that  they 
shall  be  confined  strictly  to  the  matters  put  in  issue.  Campbell 
V.  Hyde,  1  D.  Chip.  65.  And  when  pleadings  close  in  a  demurrer, 
no  fact  can  be  treated  as  in  the  case  that  does  not  appear  from 
the  pleadings  and  is  not  admitted  by  the  demurrer,  though  ad- 
mitted on  hearing.  Hartland  v.  AVindsor,  29  Vt.  354.  Parties 
can,  of  course,  submit  a  case  on  agreed  facts;  but  those  facts 
must  be  within  the  issue,  for  the  court  tries  only  such  issues  as 
the  parties  make  by  their  pleadings.  Carpenter  v.  Welch,  40 
Vt.  at  p.  255. 

A  demurrer  admits  only  such  facts  as  are  well  pleaded  and 
therefore  never  admits  an  allegation  that  the  pleadings  show  that 
party  is  estopped  to  make,  for  such  an  allegation  is  not  well 
pleaded.  Gould's  PL,  chap.  IX,  §25.  Hence  the  facts  here 
alleged  in  contradiction  of  the  return,  not  being  well  pleaded, 
are  not  admitted  by  the  demurrer  and  cannot  be  considered. 
Judgment  affirmed  mid  cause  remanded.^ 


SIBERT  V.  THORP. 

77  Illinois,  43.     [1875.] 

This  was  an  action  of  assumpsit  by  William  W.  Thorp  against 
Jeremiah  Sibert  and  Jeriel  Wilday  upon  a  promissory  note. 

The  defendant  Sibert,  whom  the  sheriff's  return  showed  was 
alone  served  with  the  summons,  pleaded  in  abatement  that  at 
the  time  of  the  commencement  of  the  suit  he  was  a  resident  of 
Morgan  county,  Illinois,  and  was  not,  at  the  date  of  the  com- 
mencement of  the  suit,  found  in  the  county  of  ]\Iorgan,  and  that 
process  issued  to  the  sheriff  of  Morgan  county  was  served  upon 
the  defendant  in  the  county  of  Scott,  and  not  in  the  county  of 

1  Accord :  Slayton  v.  Chester,  4  The  rule  making  the  return  con- 
Mass.  478  (plea  in  abatement)  ;  elusive,  and  limiting  the  aggrieved 
Stenson  v.  Snow,  10  Me.  263 ;  Hal-  party  to  an  action  against  the  officer 
lowell  v.  Page,  24  Mo.  590  (motion  for  a  false  return,  does  not  violate 
to  quash  return);  Tilman  v.  Davis,  the  "Due  Process"  clause  of  the 
28  Ga.  494  (motion  to  set  aside  de-  Constitution,  Miedreich  v.  Lowen- 
fault).  stein,  232  U.   S.   236. 


II 


Sec.  3.]  sibert  v.  thorp.  157 

Morgan ;  and  that  at  the  time  of  such  service  of  process,  the  de- 
fendant was  not  found  or  served  with  process  by  the  sheriff  in 
Morgan  county,  but  was  served  in  the  county  of  Scott. 

The  plaintiff  replied  that  process  was  issued  and  served  upon 
the  defendant  in  the  county  of  Morgan  and  State  of  Illinois,  and 
that  defendant  was  not  found  and  served  with  process  in  the 
county  of  Scott. 

The  defendant  rejoined :  1st,  that  it  does  not  appear  of  record 
that  he  was  served  with  process  in  the  county  of  Morgan,  as 
alleged;  and,  2d,  that  defendant  was  found  and  served  with 
process  in  the  said  county  of  Scott,  and  not  in  the  county  of 
]\lorgan,  as  alleged,  etc. 

The  court  sustained  a  special  demurrer  to  this  rejoinder,  and 
rendered  judgment  against  the  defendant  for  the  amount  shown 
to  be  due  on  the  note,  and  the  defendant  appealed. 

Mr.  Justice  Scholpield  delivered  the  opinion  of  the  court: 

The  question  presented  by  the  record  in  this  case  is,  can  the 
defendant,  by  pleading,  raise  an  issue  of  fact  on  the  return  of  a 
sheriff,  endorsed  on  a  summons,  in  the  discharge  of  his  official 
duty? 

The  old  common  law  authorities  seem  to  answer  the  question 
in  the  negative.  Comyn,  in  his  Digest  (title  ''Return,"  "G"), 
says:  "No  averment  can  be  taken  in  pleading  against  the 
sheriff's  return.  15  East,  378.  If  false,  the  remedy  is  by  action. 
Loff't,  371."  And  to  the  same  effect  is  Allen  on  Sheriffs,  371. 
But  in  this  country  many  courts  have  held  that  the  sheriff's 
return,  on  original  process,  is  only  prima  facie  evidence  of  the 
facts  recited,  and  consequently  that  it  may  be  shown  to  be  in- 
correct. See  Watson  v.  Watson,  6  Conn.  334;  Wendell  v.  Merg- 
ridge,  19  N.  II.  112;  Rowe  v.  Table  Mountain  Water  Co.,  10 
Cal.  441;  Carr  v.  Com.  Bank  of  Racine,  16  Wis.  50;  Bond  v. 
Wilson,  8  Kans.  228. 

In  the  Mineral  Point  R.  R.  Co.  v.  Keep,  22  111.  15,  the  ques- 
tion was  discussed,  although  it  was  held  to  have  been  waived 
by  the  pleading,  whether  it  was  competent  to  show  that  the  per- 
sons upon  whom  the  writ  was  served  were  not  in  fact  agents  of 
the  company,  as  recited  by  the  return,  and  it  was  said:  "We 
are  not  inclined  to  think  the  return  of  the  ofBcer,  as  to  the  fact 
of  agency,  when  a  corporation  is  sued  should  be  conclusive. 
Great  injustice  and  ruin  to  incorporated  companies  might  be  the 


158  PROCESS.  [Chap.  I. 

consequence  had  the  officer  the  undisputed  power  to  select  any 
person  he  might  choose  as  the  agent  of  a  company  sued,  and 
serve  the  process  upon  him.  That  he  was  the  agent  must  be  held 
to  be  a  fact  open  to  the  country.  *  *  *  ^g  think,  therefore, 
that  the  fact  of  the  agency  could  have  been  put  in  issue  by  plea 
in  abatement  of  the  writ,  the  defendants  answering  for  that 
purpose  only."  In  Owen  v.  Ranstead,  22  111.  162,  bill  in  chan- 
cery was  filed  to  set  aside  a  judgment  at  law,  on  the  ground  that 
the  defendant  was  not  served  with  process,  or,  if  served,  it  was 
under  such  circumstances  as  deceived  him  as  to  the  truth  of 
what  was  done.  The  bill  was  sustained,  and  the  remedy  was 
held  to  be  appropriate.  In  Brown  v.  Brown,  59  111.  315,  motion 
was  made  to  set  aside  a  decree  for  divorce,  for  the  reason,  sup- 
ported by  affidavits,  that  the  person  with  whom  a  copy  of  the 
summons  had  been  left  was  not,  as  stated  in  the  sheriff's  return, 
a  member  of  the  defendant 's  family.  It  was  held  that  the  decree 
should  have  been  set  aside.  The  court,  after  alluding  to  the 
general  rule  that  the  return  of  an  officer  can  not  be  disputed, 
observe :  ' '  Where  it  is  sought  to  contradict  the  return  collater- 
ally, and  after  rights  have  been  acquired  upon  its  faith,  or  inno- 
cent persons  are  to  be  injuriously  affected,  courts  should  firmly 
apply  the  rule.  Such  has  been  the  action  of  this  court  in  cases 
of  that  character. 

' '  While,  however,  this  is  the  well  established  general  principle, 
cases  have  occasionally  occurred,  and  will  continue  to  do  so, 
which,  in  order  to  prevent  the  perpetuation  of  a  great  wrong, 
must  be  treated  as  exceptional." 

In  Hickey  v.  Stone  et  al.,  60  111.  459,  it  was  held,  on  the 
authority  of  the  previous  decision  just  referred  to,  that  a  bill 
in  chancery  was  proper  to  set  aside  a  judgment  at  law,  where 
there  was  no  appearance,  on  the  ground  that  the  defendant  had 
not  been  served  with  process,  notwithstanding  the  sheriff's  return 
showed  there  had  been  service. 

The  general  principle  recognized  by  these  decisions  is,  neces- 
sarily, that  the  return  of  the  sheriff  is  not  an  absolute  verity, 
but  merely  that  it  is  prima  facie  evidence  of  the  truth  of  the 
matters  therein  recited,  and,  consequently,  that  it  may  be  put  in 
issue,  before  judgment,  by  plea  in  abatement.  We  are  aware 
that,  in  thus  holding,  we  are  in  conflict  with  dicta  in  many  of 
the  early  decisions,  still  it  is  the  logical  result  of  the  previous 


II 


Sec.  3.]  higham  v.  state  travelers  ass'n,  159 

decisions  to  which  we  have  referred,  and  we  do  not  perceive,  in 
practice,  that  it  can  be  productive  of  harmful  results. 

Considered  as  a  question  of  abstract  right,  there  can  be  no 
good  reason  why  a  party  shall  be  denied  to  show  to  the  court 
which  is  about  to  render  judgment  against  him,  that  he  is  not, 
in  fact,  within  its  jurisdiction,  and  compelled  to  suffer  a  present 
wrong,  with  the  mere  probability  of  being  able  to  repair  it  by 
another  action  against  the  officer  by  whose  act  it  was  caused. 
By  allowing  the  truth  of  the  return  to  be  questioned  before  judg- 
ment, the  delinquency  or  dishonesty  of  the  officer  is  more  speedily 
shown,  there  is  greater  certainty  that  injustice  is  not  done  by 
rendering  judgment  against  those  who,  in  fact,  have  not  had  the 
notice  to  which  they  are  entitled  by  law,  a  multiplicity  of  actions 
is  avoided,  and  it  is  not  possible  that  the  rights  of  innocent  par- 
ties can  be  injured  thereby. 

Our  conclusion  is  that  the  court  below  erred  in  not  carrying 
the  demurrer  back,  and  sustaining  it  to  the  replication  of  the 
appellee.    The  judgment  is  reversed  and  the  cause  remanded. 

Judgment  reversed} 


HIGHAM  V.  STATE  TRAVELERS  ASS'N. 

183  Fed.  Rep.  845.     [1911.] 

Van  Valkenburgh,  District  Judge.  Robert  Higham,  plain- 
tiff's husband,  was  insured  in  the  defendant  company  against 
injury  and  death  resulting  through  external,  violent,  and  acci- 
dental means.  The  petition  alleges  that  in  March,  1907,  the  said 
Robert  Higham  received  such  accidental  bodily  injuries  which, 
independently  of  all  other  causes,  resulted  in  his  death.  Suit  is 
brought  for  the  recovery  of  $5,000  therefor.  The  defendant  is  a 
mutual  insurance  corporation  organized  and  existing  under  the 
laws  of  the  state  of  Iowa,  with  its  headquarters  and  only  office 
at  Des  Moines,  Iowa.     It  is  not  authorized  to  do  business  in  the 

1  There  is  an  equally  sharp  con-  On  a  scire  facias  to  revive  a  judg- 
flict  as  to  the  power  of  a  court  of  ment  the  falsity  of  the  original  re- 
equity  to  relieve  against  a  false  re-  turn  can  not  be  shown  by  extrinsic 
turn.  See  Smoot  v.  Jurld,  184  Mo.  evidence,  Bank  v.  Eeed,  231  111.  246. 
508,  and  cases  there  cited. 


160  PROCESS.  [Chap.  I. 

state  of  ^Missouri  by  the  superintendent  of  insurance  and  main- 
tains no  agents  or  representatives  in  the  latter  state  who  solicit 
insurance  or  make  any  contract  of  insurance,  or  collect  or  receive 
any  insurance  premiunLs,  or  who  adjust  or  settle  losses,  or  pay 
the  same  for  such  insurance  corporation. 

Section  7992,  Rev.  St.  Mo.  1899  (Ann.  St.  1906,  p.  3801)  pro- 
vides that  in  the  case  of  such  corporations  service  of  summons 
shall  be  valid  and  legal  "if  made  by  delivering  a  copy  of  the 
summons  and  complaint  to  any  person  within  this  state  who 
shall  solicit  insurance  on  behalf  of  any  such  insurance  corpora- 
tion, or  make  any  contract  of  insurance,  or  collects  or  receives 
any  premium  for  insurance,  or  who  adjusts  or  settles  a  loss  or 
pays  the  same  for  such  insurance  corporation,  or  in  any  manner 
aids  or  assists  in  doing  either."  Service  in  this  case  w^as  made 
upon  one  Dr.  B.  F.  Watson,  as  a  proper  person  to  be  served 
under  this  statute.  The  defendant,  appearing  specially  for  the 
purposes  of  this  motion,  contends  that  he  was  not  such  a  repre- 
sentative of  the  company  as  would  make  service  upon  him  satisfy 
the  requirements  of  due  process  of  law. 

The  summons,  with  return  of  service,  has  been  lost ;  but  it  is 
conceded  that  one  was  served  upon  Watson,  and  the  plaintiff,  in 
opposition  to  the  motion,  has  filed  Watson's  deposition  upon 
which  she  relies  to  establish  his  relationship  to  the  defendant 
corporation.  So  that  we  are  not  concerned  here  with  the  form 
of  the  return,  the  only  question  being  whether  the  service  was 
valid  and  legal. 

Plaintiff  contends,  first,  that  the  return  is  conclusive,  and  that 
its  truth  cannot  be  controverted,  citing  Newcorab  v.  Railroad, 
182  Mo.  678-704,  81  S.  W.  1069.  While  this  may  be  conceded, 
for  the  purposes  of  this  case  so  far  as  it  concerns  the  physical 
acts  of  the  sheriff  and  recitals  respecting  the  person  upon  whom 
service  was  made  and  the  date  of  such  service,  it  does  not  follow 
that  the  conclusions  of  law  stated  by  the  sheriff  in  his  return 
may  not  be  controverted.^  In  the  federal  court  it  is  proper 
practice  to  try  the  question  of  the  sufficiency  of  the  service  of  a 
summons  by  motion  to  quash  the  return,  supported  by  affidavit, 
and  in  the  absence  of  statute  a  federal  court  is  not  required  by 
the  act  of  conformity  to  follow  the  state  practice  of  trying  this 

1  In  a  number  of  States  the  same  of  the  officer,  Walker  v.  Lutz,  14 
rule  is  applied  to  questions  of  fact  Nebr.  274;  Carr  v.  Bank,  16  Wis. 
not  within   the   personal   knowledge       loc.  56. 


I 


Sec.  3. 


HIGHAM  V,  STATE  TRAVELERS  ASS'n. 


161 


question.2  Wall  v.  Chesapeake  &  Ohio  Ry.  Co.,  95  Fed.  398,  37 
C.  C.  A.  129.  And  such  is  the  uniform  practice.  Commercial 
Mutual  Accident  Co.  v.  Davis,  213  U.  S.  245,  29  Sup.  Ct.  445, 
53  L.  Ed.  782 ;  St.  Clair  v.  Cox,  106  U.  S.  350,  1  Sup.  Ct.  354, 
27  L.  Ed.  222 ;  Mutual  Life  Ins.  Co.  v.  Spratley,  172  U.  S.  602, 
19  Sup.  Ct.  308,  43  L.  Ed.  569. 


2  On  the  method  of  raising  the 
question  the  principal  case  follows 
the  established  Federal  rule,  for 
which  the  following  reasons  were 
given  in  Am.  Cereal  Co.  v.  Petijohn, 
70  Fed.  276:  Showalter,  Circuit 
Judge.  "This  is  a  bill  in  chancery 
filed  originally  in  the  superior  court 
of  Cook  county.  The  complainant 
is  a  corporation  organized  and  do- 
ing business  in  Ohio.  The  defend- 
ant, a  Minnesota  corporation,  hav- 
ing removed  the  cause  to  this  court 
by  a  special  appearance  for  that 
purpose  in  the  state  court,  thereupon 
filed  its  motion  in  this  court  to 
quash  the  sheriff's  return  of  serv- 
ice, on  the  ground  that  the  person 
named  in  said  return  as  the  agent 
of  defendant  was  not,  in  fact,  the 
defendant's  agent  or  employe, 
within  the  sense  of  §  4,  c.  110,  Rev. 
St.  111.,  relating  to  the  service  of 
process  on  corporations.  Said  mo- 
tion is  in  writing,  and  defendant 
proposes  to  support  the  same,  and 
make  out  its  denial  of  said  agency 
or  employment — in  other  words,  to 
try  the  question — by  affidavits. 
Complainant  now  moves  to  strike 
said  motion  so  made  by  defendant 
from  the  files,  on  the  ground  that 
said  matters  cannot  be  tried  or  de- 
termined,  against   the   objection   of 


complainant,  otherwise  than  by  plea 
in  abatement.  In  support  of  this 
position,  complainant's  counsel  cites 
decisions  by  the  supreme  court  of 
Illinois,  and  one,  at  least,  by  a 
learned  federal  judge,  wherein  the 
state  ruling  is  followed.  I  find, 
however,  that  the  practice  of  mak- 
ing the  question  by  motion,  and  not 
by  plea,  prevails  quite  generally  in 
the  federal  courts;  and  this,  I  con- 
clude, upon  reflection,  is  the  correct 
practice.  The  determining  consid- 
eration is  that  the  matter  at  issue, 
however  it  may  result,  will  not  end 
the  suit,— if  found  against  the  de- 
fendant, the  defendant  is  in  court 
and  must  plead ;  if  in  favor  of  the 
defendant,  the  return  on  the  writ  is 
vacated  or  quashed,  and  the  suit 
remains  pending, — whereas  a  plea, 
either  in  abatement  or  in  bar,  if 
made  out  by  proof,  puts  an  end  to 
the  proceeding.  The  view  that  a 
motion  to  be  determined  on  affi- 
davits is  the  proper  practice  in  such 
cases  is  sustained  by  English  de- 
cisions. Hemp  v.  Warren,  2  Dowl. 
(N.  S.)  758;  Preston  v.  Lamont,  1 
Exch.  Div.  361."  But  a  plea  in 
abatement  is  used  in  a  number  of 
the  states.  See  Greer  v.  Young,  120 
HI.    184. 


H.  T.  P.— 11 


162  PROCESS.  [Chap.  I. 

(c)  Amendment. 

SHENANDOAH  V.  R.  K  GO.  v.  ASHBY. 

86  Virginia,  232.     [1889.] 

Lewis,  P.,  delivered  the  opinion  of  the  court. 

It  appears  from  the  record,  that  on  the  4th  of  September, 
1874,  Thomas  N.  Ashby  instituted  an  action  of  debt  in  the  said 
court  against  the  Shenandoah  Valley  Eailroad  Company  for  the 
sum  of  $5,231.90  and  $11.90  costs,  upon  the  transcript  of  a 
record  of  a  judgment  which  he  had  previously  recovered  against 
the  said  company  in  one  of  the  courts  of  West  Virginia.  On 
the  original  summons  sued  out  in  the  action,  return  was  made 
by  John  T.  Lovell,  a  deputy  of  L,  Leach,  sheriff  of  Warren 
county,  as  follows: 

"Executed  the  within  summons  in  debt  on  September  5,  1874, 
upon  M.  B.  Buck,  one  of  the  directors  of  the  Shenandoah  Valley 
Railroad  Company,  by  delivering  to  him  a  copy  thereof.  John 
T.  Lovell,  D.  S.,  for  L.  Leach,  S.  W.  C." 

At  the  ensuing  October  term  a  judgment  by  default  was  ren- 
dered for  the  plaintiff  for  the  sum  claimed  in  the  declaration, 
which  judgment  was  several  years  afterwards  asserted  by  the 
trustees  of  the  plaintiff,  the  defendants  in  error  here,  as  a  lien 
upon  the  property  of  the  defendant  company,  in  a  certain  chan- 
cery suit  pending  in  the  Circuit  Court  of  Roanoke  city,  wherein 
the, Fidelity  Insurance  Trust  and  Safe  Deposit  Company  was 
plaintiff,  and  the  said  railroad  company  was  defendant.  But 
the  claim  was  rejected  on  the  ground  that  the  judgment  was 
void,  because  there  had  been  neither  service  of  process  upon,  nor 
voluntary  appearance  by,  the  defendant  in  the  action  wherein 
the  judgment  was  recovered.  Subsequently  the  said  trustees, 
after  due  notice,  to-wit,  on  the  20th  of  October,  1887,  moved  the 
said  Circuit  Court  of  Warren  county,  to  permit  the  said  return 
to  be  amended,  which  motion  was  granted,  and  the  return  was 
accordingly  amended  by  the  said  Lovell  so  as  to  read  as  follows : 

"Executed  the  within  summons  in  debt  on  September  5,  1874, 
upon  M.  B.  Buck,  one  of  the  directors  of  the  Shenandoah  Valley 
Railroad  Company,  by  delivering  to  him  a  copy  hereof,  in  the 


d 


Sec.  3.]  shenandoah  v.  r.  r.  co.  v.  ashby.  163 

county  of  Warren,  Virginia,  in  which  county  he  resided  at  the 
time.    John  T.  Lovell,  D.  S.,  for  L.  Leach,  S.  W.  C." 

The  defendant  company,  the  plaintiff  in  error  here,  complains 
of  this  action  of  the  Circuit  Court  permitting  the  return  to  be 
amended,  and  the  principal  ground  of  its  complaint  is  that,  as 
the  original  return  does  not  show  that  the  summons  was  served 
in  conformity  with  the  provisions  of  the  statute  relating  to  the 
service  of  process  in  such  cases  upon  the  officers  of  a  corporation, 
the  service  was  without  legal  effect,  and  consequently  the  judg- 
ment founded  upon  it  is  void  and  cannot  be  validated  by  amend- 
ment of  the  return. 

There  is  no  doubt  that  the  original  return  is  defective,  and 
does  not  of  itself  show  that  the  defendant  company  was  legally 
brought  before  the  court,  since  the  statute  expressly  enacts  that 
service  of  process  in  such  a  case  upon  an  officer  of  a  corporation 
shall  be  in  the  county  or  corporation  in  which  he  resides,  and 
that  "the  return  shall  show  this,  and  state  on  whom  and  when 
the  service  was ;  otherwise  the  service  shall  not  be  valid. ' '  Code 
1873,  Chap.  166,  §  7 ;  Code  1887,  §  3227. 

It  must  therefore  be  conceded  that,  unless  leave  to  amend  the 
return  was  rightly  granted,  the  judgment  is  void.  Barksdale  v. 
Neal,  16  Gratt.,  314;  4  Minor  Inst.,  532.  Without  the  amend- 
ment the  record  presents  a  case,  not  of  a  defective  service  merely, 
but  of  no  service  at  all.  In  other  words,  it  presents  the  case  of 
a  judgment  rendered  by  a  court  without  having  acquired  juris- 
diction over  the  defendant,  which  is  simply  a  nullity.  The  rule 
that  a  court  of  general  jurisdiction,  acting  within  the  scope  of 
its  authority,  is  presumed  to  act  rightly,  and  to  have  jurisdic- 
tion to  render  the  judgment  it  pronounces,  until  the  contrary 
appears,  applies  only  as  to  those  matters  concerning  which  the 
record  is  silent ;  nor  can  it  operate  in  a  case  like  the  present  to 
supply  jurisdictional  facts  which  the  return,  according  to  the 
statute,  must  show  affirmatively.  Harris  v.  Hardeman,  14  How., 
334 ;  Settlemier  v.  Sullivan,  97  U.  S.,  444 ;  Richards  v.  Ladd,  6 
Sawyer,  40;  Dorr  v.  Rohr,  82  Va.  359. 

We  are  of  opinion,  however,  that  the  Circuit  Court  did  not 
err  in  permitting  the  return  to  be  amended,  and  that,  viewing 
the  case  in  the  light  of  the  amended  return,  the  judgment  is 
valid  and  unassailable.  The  case  is  not  within  the  principle  that 
proceedings  which  are  void  ah  initio  cannot  be  rendered  valid 
by  amendment,  for  here  the  effect  of  the  amendment  was  not  to 


164  PROCESS.  [Chap.  I. 

confer  jurisdiction  upon  the  Circuit  Court,  but  only  to  perfect 
the  proof  of  the  jurisdiction  which  it  had  previously  acquired, 
but  of  which  the  evidence  prescribed  by  the  statute  was  wanting. 
In  other  words,  the  amendment,  by  relating  back  to  the  original 
return  and  becoming,  in  effect,  a  part  of  it,  shows,  in  the  pre- 
scribed form  and  manner,  that  the  defendant  company  was  duly 
served  with  process,  and  hence  had  notice  and  an  opportunity 
to  be  heard,  which  are  essential  requisites  to  the  jurisdiction  of 
all  courts. 

The  extensive  power  with  which  every  court  is  ordinarily 
clothed  to  permit  an  amendment  of  a  return  of  its  own  process, 
whether  original,  mesne,  or  final,  for  the  correction  of  a  casual 
and  honest  mistake  or  omission,  is  not  affected  by  the  statute 
above  referred  to,  and  may  be  exercised  in  all  cases,  where  it 
exists  at  all,  as  well  after  judgment  at,  before.  In  some  cases  it 
has  been  exercised  even  to  the  extent  of  taking  away  altogether 
a  cause  of  action  growing  out  of  the  original  return,  and  even 
though  a  suit  or  motion  founded  on  the  original  return  was  pend- 
ing at  the  time.  And  it  makes  no  difference  that  the  officer  by 
whom  the  return  was  made  has  gone  out  of  office  or  is  dead. 
There  is  no  specific  limitation  of  time  within  which  the  power 
may  be  exercised,  although  after  a  considerable  lapse  of  time,  it 
should  be  exercised  with  caution,  and  in  no  case  ought  it  to  be 
exercised,  unless  the  court  can  see  that  it  will  be  in  furtherance 
of  justice. 

In  a  proper  case,  however,  leave  to  amend,  so  as  to  make  the 
return  speak  the  truth,  ought  to  be  and  usually  is,  liberally 
granted,  and  when  the  amendment  is  made,  the  same  effect  is  to 
be  given  to  the  return,  as  amended,  as  though  it  had  at  first  been 
put  in  its  present  form.  In  other  words,  "the  amendment  takes 
effect  by  relation,  and  operates  as  if  made  at  the  same  time  as 
the  original  return."  Freem.  Executions,  §§359,  360;  4  Min. 
Inst.,  839 ;  Stone  v.  Wilson,  10  Gratt.  529 ;  Walker  v.  Common- 
wealth, 18  Id.  13,  51 ;  Richards  v.  Ladd,  6  Sawyer,  40 ;  Stotz  v. 
Collins,  83  Va.  423,  and  cases  cited. 

This  being  so,  it  follows  that  the  objection  founded  upon  the 
form  of  the  original  return  cannot  be  sustained.  Nor  is  the  po- 
sition maintainable  that  the  amendment  operates  to  the  prejudice 
of  certain  creditors  of  the  defendant  company,  whose  debts  are 
secured  by  mortgages  executed  subsequent  to  the  rendition  of 
the  judgment  in  October,  1874. 


i 


Sec.  3.]     Chicago  pl.  mill  co.  v.  merchants'  n't'l  bk.  165 

There  are  cases  which  hold,  and  we  do  not  question  the  doc- 
trine, that  an  amendment  of  a  return  will  not  be  permitted  to 
affect  injuriously  the  rights  of  third  persons,  which  have  attached 
in  the  meantime,  and  which  were  acquired  upon  the  faith  of  the 
verity  of  the  original  return.  But  the  present  is  not  a  case  of 
that  class.  The  judgment  was  duly  docketed,  and  there  is  noth- 
ing in  the  record  to  show  that,  when  the  mortgages  were  executed, 
the  judgment  was  not  supposed  to  be  valid.  At  all  events,  the 
liens  were  acquired  subject  to  the  right  of  the  plaintiff  in  the 
judgment  to  have  the  record  perfected,  as  has  been  done. 

The  order  permitting  the  amendment  must  therefore  be  af- 
firmed with  costs.i 


CHICAGO  PLANING  MILL  CO.  v.  MERCHANTS' 
NATIONAL  BANK. 

97  Illinois,  294.     [1881.] 

Writ  of  error  to  the  Superior  Court  of  Cook  county;  the 
Hon.  John  A.  Jameson,  Judge,  presiding. 

On  June  10,  1876,  defendant  in  error  sued  out  a  summons 
against  the  plaintiff  in  error,  which  is  a  corporation  having  its 
place  of  business  in  Cook  county,  Illinois.  The  summons  was 
returned  by  the  sheriff  with  this  return : 

' '  The  president  of  the  within  named  company  not  being  found 
in  my  county,  served  this  writ  by  reading  and  delivering  a  copy 
thereof  to  William  H.  Jenkins,  secretary  of  said  company,  this 
13th  day  of  June,  1876. 

"Francis  Agnew,  Sheriff. 

"By  Walter,  McDonald,  Deputy." 

On  July  6,  1876,  the  court  found  that  "due  personal  service 
of  process  of  summons  issued  in  said  cause  has  been  had  on 
defendant,  etc.,  that  defendant  made  default,"  etc.,  and  gave 
judgment  by  default  for  $4,052.66. 

On  August  15,  1877,  the  plaintiff  below  having  been  notified 
and  being  in  court,  the  defendant  being  present  by  its  attorney, 

1  See  Ins.  Co.  v.  "Wolf,  9  Biss.  112  111.  29  (amendment  sixteen 
285,  ante  p.  56;  Spellmeyer  v.  Goflf,       years  after  judgment). 


166  PROCESS.  [Chap.  I. 

the  sheriff  asked  leave  to  amend  his  return  upon  the  summons  in 
accordance  with  the  facts.  To  show  the  reason  of  doing  so,  and 
why  leave  should  be  granted,  he  filed  the  affidavit  of  Walter 
McDonald,  the  deputy  sheriff  who  made  the  service  and  return 
and  who  made  affidavit  that  he  served  the  summons  in  accord- 
ance with  the  directions  written  in  pencil  upon  the  said  sum- 
mons; that  at  the  time  he  served  said  summons  and  made  said 
return  he  did  not  personally  know  that  Jenkins  was  secretary 
of  said  company,  defendant.  He  did  not  know  who  was  the 
president  of  said  planing  mill  company,  that  he  made  no  inquiry' 
as  to  who  the  president  was,  and  that  he  made  no  attempt  to 
find  said  president.  The  return  upon  said  summons,  in  so  far 
as  it  implies  that  the  president  of  said  planing  mill  company 
could  not  have  been  found  in  Cook  county,  is  incorrect,  and  was 
made  by  inadvertence.  He  made  the  service  upon  the  person  he 
was  directed  to  serve,  and  made  no  attempt  to  serve  any  one  else. 
He  also  filed  the  affidavit  of  A.  C.  Hesing,  that  he  was  at  the 
time  president  of  the  company,  defendant,  and  that  he  was  con- 
tinuously in  the  city  of  Chicago,  at  his  office  or  residence,  dur- 
ing the  lifetime  of  the  summons ;  also,  that  "Wm.  H.  Jenkins  was 
not  the  secretary  of  the  company  at  the  time  of  the  service,  but 
that  Washington  Hesing  was  such  secretary.  Also  the  affidavits 
of  Washington  Hesing  and  Wm.  H.  Jenkins,  to  the  fact  that 
Jenkins  had  resigned  his  position  as  secretary  of  the  company 
more  than  a  month  before  the  summons  was  issued,  and  that  at 
the  time  of  the  service  Washington  Hesing  was  secretary,  and 
not  Jenkins. 

The  plaintiff  below  resisted  the  application  of  the  sheriff  to 
amend,  and  filed  the  affidavit  of  Alfred  B.  Mason,  its  attorney. 

The  court  granted  leave  to  amend  the  return,  and  the  sheriff 
afterwards  amended  the  return  so  as  to  read  as  follows : 

"By  leave  of  court  the  above  return  is  stricken  out  and 
amended  in  accordance  with  the  facts,  so  as  to  read  as  follows : 
Served  this  writ  by  reading  and  delivering  a  copy  thereof  to 
William  H.  Jenkins,  by  direction,  as  secretary,  this  13th  day  of 
June,  A.  D.  1876. 

"Francis  Agnew,  Sheriff. 

"By  Walter  McDonald,  Deputy." 

Upon  this  record  the  plaintiff  in  error  comes  into  this  court 
and  assigns  for  error  that  the  court  erred. 


Sec.  3.]     chic  ago  pl.  mill  co.  v.  merchants  '  n 't 'l  bk.  167 

1.  In  finding  that  the  defendant  had  due  personal  service  of 
the  summons. 

2.  In  ordering  that  the  default  of  defendant  be  taken  and 
entered. 

3.  In  rendering  judgment  in  favor  of  the  plaintiff  against  the 
defendant  as  in  default,  and  asks  that  the  judgment  be  vacated. 

Mr.  Justice  Scholfield  delivered  the  opinion  of  the  court: 

This  case  was  considered  by  us  at  our  September  term,  1877, 
and  an  opinion  was  filed,  and  judgment  rendered  thereon,  sub- 
sequently, in  vacation.  Planing  Mill  Co.  v.  National  Bank,  86 
111.  587.  By  inadvertence  the  judgment  was  made  to  affirm  the 
judgment  of  the  Superior  Court,  when  it  was  in  reality  intended 
to  affirm  only  an  order  of  that  court  allowing  an  amendment  of 
the  sheriff's  return  to  the  summons,  and  to  reverse  the  judgment 
of  the  Superior  Court. 

Upon  having  our  attention  called  to  this  mistake,  we,  of  our 
own  motion,  ordered  a  rehearing  of  the  cause ;  and  we  have  heard 
additional  arguments  on  the  question  of  whether  it  was  proper 
to  allow  the  amendment  to  be  made  to  the  sheriff's  return  to  the 
summons. 

The  question  has  been  thoroughly  discussed  on  both  sides,  and 
we  have  given  such  careful  and  deliberate  consideration  to  it  as 
we  have  deemed  necessary  to  a  correct  conclusion. 

That  the  return,  as  originally  made,  was  sufficient,  and  that  as 
amended,  it  is  insufficient  to  sustain  the  judgment,  is  fully 
shown  by  the  former  opinion. 

In  the  earlier  cases  in  this  court  it  was  held  the  Circuit  Court 
may  authorize  a  sheriff  to  amend  his  return,  either  before  or 
after  the  rendition  of  a  decree  or  judgment,  and  this,  too,  with- 
out notice  to  the  opposite  party  of  an  intention  to  apply  for 
leave  to  amend.  Montgomery  v.  Brown,  2  Gilm.  581 ;  Moore  v. 
Purple,  3  id.  152 ;  Morris  v.  Trustees,  etc.,  15  111.  266 ;  Johnson 
V,  Donnell,  id.  97;  Turney  v.  Organ,  16  id.  43;  Coughran  v, 
Gutcheus,  18  id.  390 ;  Dunn  v.  Rodgers  et  al.,  43  id.  262 ;  Hawes 
V.  Hawes,  33  id.  286 ;  Toledo,  Peoria  and  Warsaw  Railroad  Co. 
v.  Butler,  53  id.  323. 

In  0 'Conner  v.  Wilson,  57  111.  226,  this  doctrine  was,  how- 
ever, in  part  overruled  and  it  was  there  said:  "The  true  rule 
of  practice,  upon  much  and  mature  reflection,  we  think,  should 


168  PROCESS.  [Chap.  I. 

only  permit  such  amendments  as  a  matter  of  course,  and  with- 
out notice,  during  the  term  at  which  the  cause  is  determined." 

Since  then  it  is  held  amendments  may  be  made  by  the  sheriff 
to  his  return  after  the  expiration  of  the  term  at  which  the  cause 
is  determined,  only  upon  notice  to  all  parties  interested.  Na- 
tional Ins.  Co.  V.  Chamber  of  Commerce,  69  111.  22 ;  Mass.  Mut. 
Life  Ins.  Co.  v.  Kellogg,  82  id.  614;  Barlow  v.  Standford,  id. 
298. 

In  each  of  the  foregoing  cases  and  so  far  as  we  have  been  able 
to  discover  in  all  the  cases  hitherto  decided  by  this  court,  in 
which  the  sheriff  has  been  permitted  to  amend  his  return  after 
judgment,  the  amendment  has  been  in  affirmance  of  judgment; 
and  the  question  we  are  now  to  consider  is,  was  the  Superior 
Court  authorized  to  allow  an  amendment,  which,  instead  of 
being  in  affirmance  of  judgment,  creates  such  error  as  necessi- 
tates it  reversal  by  this  court? 

Under  the  English  statutes  and  decisions  thereon  no  amend- 
ment was  admissible  save  in  affirmance  of  judgment.  Blacka- 
moer's  Case,  4  Coke's  R.,  part  8,  p.  452,  side  p.  156a;  1  Tidd's 
Practice  (4th  Am.  ed.),  696;  Wooden  &  Hazel's  Case,  1  Leonard, 
134;  Thompson  v.  Crocker,  1  Salkeld,  49;  Walker  v.  Slackoe,  5 
Modern,  69.  And  this  seems  to  be  the  ruling  in  every  state  of 
the  Union  where  the  question  has  been  directly  the  subject  of 
adjudication.  Stewart  v.  Springer,  45  Mo.  113 ;  Kitchen  v.  Rein- 
sky,  42  id.  427 ;  McClure  v.  Wells,  46  id.  311 ;  Grower  v.  Smith, 
49  id.  318 ;  White  River  Bank  v.  Downer,  29  Vt.  332 ;  Davis  v. 
Putnam,  5  Gray,  321 ;  Hopkins  v.  Busch,  3  Ga.  222 ;  Moyer  v. 
Cook,  12  Wis.  335;  Newhall  v.  Provost,  6  Cal.  85;  Powell  v. 
Commonwealth,  11  Gratt.  822;  Dorsey  v.  Pierce,  5  Howard 
(Miss.),  173;  Hughes  v.  Lapice,  5  Smedes  &  Marshall,  451; 
Englis  V.  Furness,  3  Ab.  Pr.  Rep.  82;  Gasper  v.  Adams,  24 
Barb.  287. 

But  counsel  contend  that  the  decisions  in  England  and  in  the 
other  states,  bearing  upon  the  question,  depend  so  much  upon 
matters  of  local  practice,  and  special  statute,  that  they  are  not  of 
controlling  authority  here ;  and  they  say  that  the  fourth  section 
of  our  statute  of  "Amendments  and  Jeofails"  expressly  author- 
izes the  amendment  of  sheriffs'  returns,  according  to  the  truth, 
whether  that  be  in  affirmance  of  judgment,  or  to  produce  error 
therein. 

We  can  not  concur  in  this  view.     A  statute  allowing  such 


Sec.  3.]     Chicago  pl.  mill  co.  v.  merchants'  n't'l  bk.  169 

amendments  would,  in  our  opinion,  be  a  most  dangerous  one  to 
the  stability  of  judgments,  and  we  shall  not  assume  that  the 
legislature  intended  so  to  enact,  in  the  absence  of  phraseology 
admitting  of  no  other  reasonable  construction. 

The  first  section  of  our  statute  of  "Amendments  and  Jeofails" 
empowers  the  court  in  which  an  action  is  pending  to  "permit 
amendments  in  any  process,  pleading  or  proceeding  in  such 
action,  either  in  form  or  substance,  for  the  furtherance  of  justice, 
on  such  terms  as  shall  be  just  at  any  time  before  judgment  ren- 
dered therein."  The  word  "return"  does  not  occur  in  this 
section. 

The  second  section  includes  "returns"  and  authorizes  their 
amendment  after  judgment,  but  then  only  in  affirmance  of  judg- 
ment.    It  is  as  follows : 

"After  judgment  rendered  in  any  cause,  any  defects  or  im- 
perfections in  matters  of  form,  contained  in  the  record,  plead- 
ings, process,  entries,  returns  or  other  proceedings  in  such  cause, 
may  be  rectified  and  amended  by  the  court  in  affirmance  of  the 
judgment,  so  that  such  judgment  shall  not  be  reversed  or  an- 
nulled."    *     *     * 

The  fourth  section  is : 

"All  returns  by  any  sheriff  or  other  officer,  or  by  any  court 
or  subordinate  tribunal  to  any  court,  may  be  amended  in  mat- 
ters of  form,  or  according  to  the  truth  of  the  matter,  by  the 
court  to  which  such  returns  shall  be  made  in  its  discretion,  as 
well  before  as  after  judgment." 

It  is  to  be  kept  in  mind  that  no  authority  is  given  in  either  of 
the  preceding  sections  in  express  terms  to  amend  returns  before 
judgment.  It  was  thought  necessary  in  the  second  section,  al- 
though the  word  process  had  been  previously  used,  to  expressly 
name  "returns"  as  being  amendable — and  it  is  but  fair  to  as- 
sume that  the  same  idea  obtained  in  the  enactment  of  the  first 
and  fourth  sections — that  is,  that  to  embrace  returns  they  must 
be  specifically  named — and,  not  having  been  named  in  the  first 
section,  nor  their  amendment  provided  for  before  judgment  in 
the  second  section,  it  was  necessary  to  confer  this  power  of 
amendment  in  the  fourth  section. 

The  concluding  words  of  the  fourth  section  are  strongly  con- 
firmatory of  this  view.  They  are,  "as  well  before  as  after/' 
from  which  the  only  reasonable  implication  is  provision  for 
amendment,  "after,"  already  exists,  but  it  is  necessary  now  to 


170  PROCESS.  [Chap.  I, 

confer  power  to  amend  before.  The  words  are  not  equivalent 
in  meaning  to  '^ either  before  or  after,"  but  clearly  imply  the 
"conferring  of  a  like  power  to  do  before  that  which  there  is 
already  power  to  do  after." 

This  view  leaves  the  second  section  only  applicable  to  amend- 
ments to  returns  after  judgment;  and,  as  has  been  seen,  they 
can,  by  virtue  of  it,  only  be  made  in  affirmance  of  judgment. 

The  order  of  the  court  allowing  tne  amendment  to  the  sheriff's 
return  was  erroneous,  and  it  is  reversed ;  but  the  judgment  below 
must  be  affirmed. 

Judgment  affirmed. 

Craig,  J.  I  do  not  concur.  In  my  opinion  the  fourth  section 
of  the  statute  cited  in  the  opinion  authorized  the  amendment  of 
the  sheriff's  return.^ 


HALL  V.  GRAHAM. 

49  Wisconsin,  553.     [1880.] 

Appeal  from  the  Circuit  Court  for  Grant  County. 

The  verified  complaint  in  this  case  alleges  that  defendant  was 
indebted  to  plaintiff  in  the  sum  of  $490.40,  "balance  due  upon 
a  mutual  and  open  account  current,"  and  demands  judgment 
against  him  for  that  amount  with  interest  thereon  from  January 
1,  1879,  and  for  costs,  etc.  Annexed  to  the  complaint  on  file  is 
the  summons  in  due  form,  except  that  the  sum  for  which  judg- 
ment would  be  taken  (exclusive  of  interest  and  costs)  was  left 
blank,  and  that  the  postofifice  address  of  the  attorney  subscrib- 
ing it  was  not  given.  Upon  the  summons  is  indorsed  an  affidavit 
of  "Samuel  Morris,  Constable,"  which  states  that  on  the  14th 
of  January,  1879,  the  affiant  "served  the  within  summons  and 
complaint  on  the  defendant  within  named,  by  delivering  to  him 
personally'  a  true  and  correct  copy  thereof,  at  Potosi  in  said 
Grant  county,"  and  that  the  affiant  personally  knew  the  said 
Graham  to  be  the  defendant  therein  named.  On  the  11th  of 
February,  1879,  plaintiff's  attorney  filed  an  affidavit  of  no  an- 

1  See  Stewart  v.  Stringer,  45  Mo.       restoring  the  original  defective  re- 
113,   where  the   court  permitted   an       turn, 
amendment   to   be   withdrawn,   thus 


Sec.  3.]  park  land  co.  v.  lane.  171 

swer  or  appearance  by  the  defendant.  Thereupon  it  was  re- 
ferred to  the  clerk  of  the  court  to  take  proof  of  the  plaintiff's 
demand,  and  upon  the  coming  in  of  his  report  the  court  rendered 
judgment  for  the  plaintiff  as  demanded.  Defendant  appealed 
from  the  judgment. 

Orton,  J.  The  Circuit  Court  had  no  jurisdiction  to  render 
the  judgment  appealed  from,  because  there  was  before  the  court 
no  such  proof  of  the  service  of  the  summons  as  the  statute  re- 
quires. Subd.  2,  §  2642,  R.  S. ;  Matteson  v.  Smith  et  al.,  37  Wis. 
333.  The  affidavit  of  the  person  who  is  alleged  to  have  served 
the  summons,  and  which  constitutes  the  only  return  of  such 
service,  fails  to  state  that  a  copy  of  the  summons  was  left  with 
the  defendant.  The  motion  papers  for  an  amended  return  were 
submitted  after  the  decision  of  this  case ;  but  it  was  too  late  to 
make  such  an  amendment  of  the  record  as  would  cure  the  error, 
after  the  appeal.  The  defect  was  jurisdictional  and  could  not 
be  cured.  Proof  of  the  service  of  the  summons  is  a  condition 
precedent  or  prerequisite  to  the  rendition  of  a  judgment  by  de- 
fault. ^ 

By  the  court.  The  judgment  of  the  Circuit  Court  is  reversed, 
with  costs,  and  the  cause  remanded  for  further  proceedings  ac- 
cording to  law. 


PARK  LAND  CO.  v.  LANE. 

106  Virginia,  304.     [W06.] 

Buchanan,  J.,  delivered  the  opinion  of  the  court. 

The  first  error  assigned  is  to  the  refusal  of  the  court  to  per- 
mit the  return  upon  the  original  summons  against  the  appellee 
to  be  amended  upon  the  appellant's  motion. 

When  the  summons  was  returned  and  filed  the  return  on  it 
became  a  matter  of  record  and  could  not  be  amended  without 
permission  of  the  court.  Goolsby  v.  St.  John,  25  Gratt.  146, 
160,  4  Minor,  937 ;  Stotz  v.  Collins  &  Co.,  83  Va.  423,  2  S.  E. 
737 ;  Freeman  on  Executions,  §  358.     This  permission  is  usually 

1  Compare:  Blaisdell  v.  Pope,  19  pending  motion  to  vacate  the  judg- 
Mo.    157,    allowing    an    amendment      ment. 


172  PROCESS.  [Chap.  I. 

granted  upon  proper  application  made  in  the  cause  in  which  the 
writ  or  summons  issued.  But  it  is  not  granted  as  a  matter  of 
course,  but  only  in  the  furtherance  of  justice  and  in  the  exercise 
of  an  enlightened  discretion  after  notice  to  the  opposite  party. 
Code,  §  3451 ;  3  Freeman  on  Executions,  §  358 ;  Shenandoah 
Valley  R.  Co.  v.  Ashby's  Trustees,  86  Va.  232,  9  S.  E.  1003,  19 
Am.  St.  Rep.  898. 

The  object  of  the  amendment  of  a  record,  as  Mr.  Freeman  says, 
whether  made  by  the  court  in  the  entries  on  its  minutes,  judg- 
ments or  other  proceedings,  or  by  the  sheriff  in  the  history  of 
his  proceedings  as  stated  in  his  return,  is,  or  always  should  be, 
to  obtain  a  record  which  shall  speak  the  exact  truth.  A  court 
will  not  suffer  a  proposed  amendment  to  be  made  without  first 
being  satisfied  that  it  is  true.  3  Freeman  on  Executions,  supra; 
Bagley,  Petitioner,  132  Mass.  457.  The  court  therefore  prop- 
erly permitted  the  parties  to  introduce  evidence  as  to  the  ques- 
tion whether  or  not,  when  the  deputy-sheriff  delivered  a  copy 
of  the  summons  to  the  wife  of  the  appellee,  he  explained  its  pur- 
port to  her. 

The  only  persons  who  appear  to  have  been  present  at  that 
time  were  the  deputy-sheriff  and  the  appellee's  wife.  The  offi- 
cer, in  his  examination  in  chief,  testified  positively  that  when  he 
delivered  the  process  to  the  appellee's  wife  he  did  explain  its 
purport  to  her,  but  on  his  cross-examination  he  stated  that  to 
the  best  of  his  recollection  he  did  so,  but  admitted  that  a  few 
days  before  he  was  testifying  he  had  made  an  affidavit  in  which 
he  had  stated  that  he  did  not  recollect  whether  he  had  or  not. 
The  appellee's  wife  testified  positively  that  the  officer  did  not 
give  her  information  as  to  the  purport  of  the  summons,  but  only 
asked  her  to  hand  it  to  her  husband  when  he  returned  home. 
The  other  two  witnesses  knew  nothing  as  to  what  took  place 
when  the  summons  was  delivered  except  what  they  were  told. 
The  sheriff  testified  that  his  deputy  told  him  a  few  days  after 
it  was  delivered  that  he  had  explained  its  purport.  The  ap- 
pellee, on  the  other  hand,  testified  that  his  wife  told  him  when 
she  gave  him  the  process,  that  the  officer  did  not  tell  her  what 
the  paper  was,  but  only  asked  her  to  hand  it  to  her  husband 
when  he  returned  home. 

If  this  hearsay  evidence  was  admissible,  and  it  is  by  no  means 
clear  that  it  was,  it  is  of  little  value.  The  trial  court  saw  the 
witnesses,  their  manner  of  testifying  and  their  bearing.     The 


Sec.  3.]  park  land  co.  v.  lane.  173 

number  of  witnesses  on  each  side  were  the  same.  Their  evidence 
was  in  direct  conflict.  The  officer's  return  and  his  affidavit  to 
some  extent  lessened  the  weight  of  his  testimony,  and  the  court 
might  very  properly  have  held,  as  it  did,  that  it  was  not  satis- 
fied that  the  proposed  amendment  was  true,  and  therefore  re- 
fused to  permit  it  to  be  made.  Indeed,  the  evidence  was  of  such 
a  character  that  no  matter  which  way  the  trial  court  decided  the 
question,  an  appellate  court  would  not  feel  justified  in  reversing 
its  action. 

It  is  further  insisted  that  the  court  erred  in  holding,  upon  the 
facts  disclosed  upon  the  motion  to  amend,  that  the  summons  had 
not  been  duly  served  on  the  appellee. 

There  were  two  ways  of  serving  process  upon  the  appellee — 
one  by  personal  service  and  the  other  by  substituted  or  con- 
structive service.  Although  the  appellee  received  from  his  wife 
the  copy  of  the  summons  left  Mdth  her  for  him  a  few  days  after- 
wards, in  ample  time  to  have  made  defense  to  the  suit,  and  from 
that  copy  actually  learned,  or  if  he  had  read  it  carefully  might 
have  learned,  its  contents,  the  service  was  not  a  good  personal 
service.  Service  upon  the  wife  of  appellee  was  not  service  upon 
him.  It  was  not  served  in  the  manner  required  by  law  to  be 
good  personal  service,  and  besides  the  appellee  did  not  receive  it 
until  after  the  return  day.  The  service  upon  appellee 's  wife  was 
a  substituted  service,  and  no  proposition  of  law  is  better  settled 
than  that  where  constructive  service  of  process  is  allowed  in  lieu 
of  personal  service,  the  terms  of  the  statute  by  which  it  is  author- 
ized must  be  strictly  complied  with,  or  the  service  will  be  invalid. 
Staunton  Building,  etc.,  Co.  v.  Haden,  92  Va.  201,  205,  209,  23 
S.  E.  285,  and  authorities  cited.  Crockett's  Admr.  v.  Etter,  etc., 
105  Va.  679,  54  S.  E.  864. 


CHAPTER  II. 
JUDGMENTS  BY  DEFAULT. 

Section  1.    When  Allowed. 
COLLINS  V.  PAGE. 

StijU,  124.     [1649.] 

A  plaint  was  entered  in  the  Court  of  Plymouth  against  Page 
for  three-score  pounds,  and  a  pone  taken  out  against  his  goods, 
and  upon  this  a  default,  and  thereupon  another  pone  issued  out 
to  attach  the  defendant's  goods;  and  the  defendant  at  three  other 
courts  successively  makes  default,  and  upon  the  fourth  default 
judgment  was  given  against  him ;  whereupon  defendant  brings  a 
writ  of  error  in  this  court  to  reverse  the  judgment,  and  assigns 
for  error,  that  here  is  a  judgment  given  before  any  appearance, 
which  cannot  be,  but  in  this  case  the  goods  attached  are  only 
forfeited  for  the  default  made  by  the  defendant's  non-appear- 
ance. The  counsel  on  the  other  side  desired  time  to  answer  the 
exception.  Roll,  Justice :  The  custom  upon  which  this  judg- 
ment is  given  is  not  reasonable.  Therefore  if  you  answer  not 
the  exception  Tuesday  next,  the  judgment  shall  be  reversed.^ 


GRIGG  v.  GILMER. 

54  Alabama,  425.     [1875.] 

Action  by  attachment  and  service  by  publication ;  defendant 
filed  a  plea  in  abatement  for  insufficiency  of  the  affidavit ;  at  the 

1 ' '  The  12  G.  1,  c.  29,  and  5  G.  of  the  perscmal  service  of  the  proc- 

2,  c.  27   (to  which  the  2  W.  4,  c.  39,  ess,  enter  an  appearance  for  the  de- 

s.  1  and  16,  refers),  provide  that  if  fendant,  and  proceed  the  same  as  if 

the  defendant  do  not  diily  appear,  the     defendant     himself     had     ap- 

then  the  plaintiff  may  upon  afidavit  peared. "     3  Chitty,  Practice,  289. 
made  and  filed  in  the  proper  Court 

174 


Sec.  1.]  GRIGG  V,   GILMER.  175 

next  term  the  following  judgment  was  entered :  ' '  This  day  come 
the  parties  by  their  attorneys,  and  the  defendant  withdrawing 
his  plea,  and  saying  nothing  in  bar  or  preclusion  of  the  plain- 
tiff's demand,  and  it  appearing  to  the  satisfaction  of  the  court, 
etc.,  it  is  therefore  considered  by  the  court  that  the  plaintiff  re- 
cover of  said  defendant  her  demand  in  the  complaint  mentioned, 
but  the  same  being  uncertain,  a  writ  of  inquiry  is  awarded  to 
ascertain  the  same."  On  defendant's  motion  this  entry  was 
amended  so  as  to  convert  it  into  a  default  for  want  of  appear- 


ance 


Brickell,  C.  J.  An  appearance  is  a  submission  to  the  juris- 
diction of  the  court,  in  obedience,  or  in  answer  to  process. 
Though  we  have  a  rule  of  practice,  prescribing  particularly  the 
mode  in  which  the  appearance  shall  be  entered,  and  thereby 
made  known  to  the  court  and  to  the  opposing  party  and  counsel, 
the  rule  is  but  seldom,  if  ever,  observed.  The  entry  on  the  mar- 
gin of  the  dockets  of  the  court  of  the  name  of  an  attorney,  op- 
posite to  the  name  of  a  party  to  a  suit,  is  accepted  in  practice 
as  an  appearance  for  such  a  party.  The  consequence  resulting 
from  an  appearance  thus  made,  may  be  limited  by  the  steps 
taken,  or  the  pleadings  interposed  subsequently.  If  these  refer 
to,  and  are  for  the  purpose  of  vacating  an  irregular  service  of 
process,  or  for  showing  to  the  court  there  has  been  no  service  of 
process,  or  for  taking  advantage  of  defects  in  the  process  on 
error  or  appeal,  such  appearance  will  not  be  deemed  a  general 
appearance,  curing  such  irregularities  or  defects.  Lecatt  v. 
Salle,  1  Port.  287;  Nabors  v.  Nabors,  2  Port.  162;  Wilson  v. 
Outlaw,  Minor  196 ;  Lampley  v.  Beavers,  25  Ala.  534. 

A  judgment  by  default  is,  in  our  practice,  a  judgment  for 
the  want  of  an  appearance.  It  is  distinguished  from  other  judg- 
ments by  the  recital,  "the  defendant  being  called,  came  not  but 
made  default."  An  appearance  in  a  civil  suit  at  law  is  purely 
voluntary.  No  process  can  issue  to  compel  it,  nor  can  the  plain- 
tiff, in  any  event,  enter  it  for  the  defendant.  A  defendant  may 
decline  to  make  it,  incurring  no  other  consequence  than  an  ad- 
mission of  the  plaintiff's  cause  of  action,  as  averred  in  the  com- 
plaint, and  a  judgment  against  him  on  such  admission.  McGehee 
V.  Childress,  2  Stew.  506.     The  judgment  can  never  be  entered 

1  The    statement    has    been    con- 
densed. 


176  JUDGMENTS   BY  DEFAULT.  [C HAP.  II. 

if  there  is  an  appearance,  unless  the  defendant  has  filed  an  af- 
firmative plea,  and  does  not  subsequently  appear  to  sustain  it. 
If  there  is  an  appearance,  and  a  failure  to  plead,  a  judgment 
nil  dicit,  not  a  judgment  by  default,  must  be  rendered.  Stewart 
V.  Goode,  29  Ala.  476.  Or,  if  the  defendant  appears,  and  subse- 
quently withdraws  his  appearance,  making  "no  further  de- 
fense," nil  dicit  is  the  proper  judgment.  Summerlin  v.  Dowdle, 
24  Ala.  428.  So,  when  there  is  an  appearance,  and  a  motion  to 
quash  the  summons  as  irregular,  which  is  overruled  and  no  fur- 
ther defense  is  made,  a  judgment  nil  dicit  is  proper.  Eaton  v. 
Harris,  42  Ala.  491.  The  appearance  of  the  defendant,  and  the 
subsequent  withdrawal  of  a  plea  filed,  is  properly  followed  by 
a  judgment  nil  dicit.    Kennedy  v.  Young,  25  Ala.  563. 

The  plea  in  abatement  filed  by  the  defendant,  because  of  the 
insufficiency  of  the  affidavit  on  which  the  attachment  issued,  was 
an  appearance ;  for  until  an  appearance  is  effected,  there  can  be 
no  pleading.  Stephen  on  Plead.,  Appendix  xxii;  1  Chit.  PI., 
427 ;  Stephens  v.  Arthur,  Salk.  544.  The  judgment  on  this  plea, 
if  in  favor  of  the  plaintiff,  on  issue  found,  would  have  been  final, 
leaving  nothing  more  to  be  done  than  an  assessment  of  the  dam- 
ages, if  the  action  sounds  in  damages.  Jones  &  Co.  v.  Donnell, 
9  Ala.  695.  If  a  demurrer  had  been  interposed  and  sustained, 
the  judgment  would  have  been  respondeat  ouster.  Massey  v. 
Walker,  8  Ala.  167.  If,  on  demurrer,  or  on  issue  found,  the 
judgment  had  been  for  the  defendant,  it  would  have  been  final', 
that  the  writ  be  quashed,  and  the  defendant  go  hence,  and  re- 
cover costs.  A  plea  on  which  a  final  judgment  may  be  ren- 
dered is,  of  necessity,  an  appearance. 

It  is  insisted,  however,  for  the  appellee,  the  withdrawal  of  the 
plea  in  abatement  remitted  the  cause  to  the  condition  in  which  it 
was  before  the  plea  was  filed.  We  cannot  assent  to  the  proposi- 
tion. It  is  not  in  accordance  with  our  former  decisions,  and 
would  operate  to  the  prejudice  of  the  plaintiff,  who,  by  its  with- 
drawal, has  been  deprived  of  the  opportunity  of  testing  the  truth 
or  sufficiency  of  the  plea,  and  obtaining  a  judgment  which  would 
have  been  final,  or  of  respondeat  ouster,  compelling  a  plea  in 
bar.  For  no  subsequent  plea  in  abatement  or  dilatory  plea  could 
have  been  interposed.  Houck  v.  Scott,  8  Port.  161.  The  with- 
drawal of  the  plea  was  the  voluntary  act  of  the  defendant,  which 
the  plaintiff  could  not  prevent.  It  was  either  a  confession  of 
its  insufficiency,  or  a  waiver  of  the  matter  of  defense  it  con- 


11 


Sec.  1.]  cox  v.  capron.  177 

tained.  Whether  the  one  or  the  other  the  defendant  was  before 
the  court,  and  failing  to  plead  further,  a  judgment  for  the  want 
of  a  plea,  which  is  a  judgment  nil  elicit,  was  the  proper  judg- 
ment. That  was  the  judgment  originally  entered,  and  in  its 
amendment,  so  as  to  convert  it  into  a  judgment  by  default,  the 
court  erred.  For  the  error  the  judgment  must  be  reversed  and 
the  cause  remanded. 


COX  V.  CAPRON. 

10  Missouri,  691.     [1847.] 

McBride,  J.,  delivered  the  opinion  of  the  court.     *     *     * 

The  first  question  presented  for  our  decision  is  the  action  of 
the  Circuit  Court  on  the  plaintiff's  motion  for  a  judgment  by 
nil  dicit.  The  reasons  assigned  in  the  motion  are,  first,  because 
there  is  no  sufficient  plea  to  said  declaration — the  plea  of  not 
guilty  having  been  withdrawn;  second,  because  the  special  plea 
of  said  defendant  is  insufficient  in  law,  and  does  not  contain  a 
substantial  defense  to  the  action ;  and,  thirdly,  because  the  said 
defendant  has  withdrawn  the  plea  of  not  guilty,  without  having 
pleaded  any  plea  that  is  sufficient  in  law  or  amounts  to  a  sub- 
stantial defense  to  the  action. 

Tidd,  in  his  treatise  on  practice,  1st  vol.,  609,  says,  that  judg- 
ment by  default,  which  is  an  implied  confession  of  the  action,  is 
either  nan  sum  informatus,  where  the  defendant's  attorney,  hav- 
ing appeared,  says  that  he  is  not  informed  of  any  answer  to  be 
given  to  the  action ;  or  by  nil  dicit,  where  the  defendant  himself 
appears,  but  says  nothing  in  bar  or  preclusion  thereof;  and  the 
latter  judgment,  which  is  the  more  usual,  is  either  for  want  of 
any  plea  at  all,  or  for  want  of  an  issuable  plea,  after  a  judge's 
order  for  time  on  the  terms  of  pleading  issuably;  or  where  the 
defendant  pleads  a  plea  not  adapted  to  the  nature  of  the  action, 
or  which  may  be  considered  as  a  nullity,^  or  is  false  and  vexa- 
tious, or  not  pleaded  in  due  time  or  in  proper  manner. 

These  rules  laid  down  by  Tidd  do  not  apply  to  the  case  at  bar ; 

1  For    the    case    of    a    plea    not       abatement  not  verified,  see,  1  Tidd 
adapted  to  the  action,  or  a  plea  in       Prac.  8  Eng.  Ed.  p.  610-11. 
H.  T.  p.— 12 


178  JUDGMENTS   BY  DEFAULT.  [C HAP.  II. 

for  in  this  case  a  plea  suited  to  the  action  was  put  in  in  proper 
time,2  and  replied  to  by  the  plaintiff,  who  could  not  thereafter, 
with  any  legal  propriety,  ask  the  court  for  a  judgment  by  nil 
dicit.  If  the  reasons  existed  which  are  set  forth  in  his  motion, 
his  proper  course  would  have  been  to  ask  leave  of  the  court  to 
withdraw  his  replication  to  the  plea  of  justification,  and  de- 
murred to  it.3  Not  having  done  this,  whether  the  plea  was  suf- 
ficient or  not,  the  court  did  right  in  overruling  his  motion. 


BLEWITT  V.  MAKSDEN. 

10  East,  237.     [1808.] 

To  an  action  against  the  acceptor  of  a  bill  of  exchange  the 
defendant  pleaded  a  sham  plea  of  judgments  recovered  in  the 
Court  of  Piepoudre  in  Bartholomew  fair,  which  were  framed  in 
terms  obviously  denoting  fictitious  proceedings;  and  Parke  for 
the  plaintiff  in  consequence  applied  for  a  rule  to  show  cause 
why  the  plaintiff  should  not  be  at  liberty  to  sign  interlocutory 
judgment  in  this  case  as  for  want  of  a  plea,  (treating  it  as  a 
nullity ;  it  being  palpably  and  upon  the  face  of  it  a  sham  plea, ) 
and  why  the  defendant's  attorney  should  not  pay  the  costs 
occasioned  by  the  plea  and  of  this  motion.  And  on  cause  shown 
by  the  Attorney-General,  he  did  not  attempt  to  justify  what  had 
been  done,  but  endeavored  to  excuse  the  pleader  and  the  defend- 
ant's attorney,  upon  the  ground  of  their  having  been  misled  by 
an  improper  practice  which  had  crept  in  of  putting  such  sham 
pleas  upon  the  files  of  the  court.  He  observed  that  it  might 
be   difficult  to  prevent   altogether  the   practice   of  putting  in 

2  It  has  been  held  that  a  plea  be  entered  pending  a  demurrer,  or  a 
filed  out  of  time  cannot  be  ignored,  motion  attacking  the  jurisdiction  or 
but  must  be  stricken  from  the  files  the  pleadings,  but  this  rule  does  not 
before  a  judgment  of  nil  dicit  can  apply  to  other  classes  of  motions, 
be  entered.  Pett  v.  Clark,  5  Wis.  e.  g.,  a  motion  for  the  production  of 
198;  but  see  Flanders  v.  Whittaker,  books  at  the  trial,  HiU  v.  Meyer,  47 
13  111.  707,  holding  that  a  demurrer  Mo.  585,  or  a  motion  for  security  for 
was  properly  ignored  where  filed  costs,  Fears  v.  Eiley,  148  Mo.  60,  or 
without  leave.  a  motion  to  vacate  an  arrest  on  civU 

3  A  judgment  by  default  can  not  process,  Phillips  v.  Kerr,  26  111.  213. 


Sec.  1.]  MANLOVE   V.   GALLIPOT.  179 

sham  pleas  of  judgment  recovered  in  the  usual  form ;  and  he 
would  not  discuss  the  different  merits  of  the  respective  forms 
of  pleading  them. 

The  court  said  that  there  might  be  occasions  where  they  would 
not  enter  into  any  question  as  to  the  truth  of  a  plea  of  judg- 
ment recovered,  pleaded  in  the  usual  form,  upon  motion,  but 
await  the  time  for  producing  the  roll  when  such  a  plea  would 
be  regularly  disproved;  but  they  expressed  great  indignation 
against  the  abuse  which  had  grown  up  of  late  and  was  continually 
increasing,  of  loading  and  degrading  the  rolls  of  the  court  with 
sham  pleas  of  this  nonsensical  nature,  making  them  the  vehicles 
of  indecorous  jesting;  by  Avhich  it  sometimes  happened  that  the 
time  of  the  court,  which  ought  to  be  better  employed,  and  was 
sufficiently  engaged  with  the  real  business  of  the  suitors,  was 
taken  up  in  futile  investigations  of  nice  points  which  might 
arise  on  demurrer  to  such  sham  pleas.  And  therefore  in  order 
effectually  to  put  a  stop  to  this  practice  in  future,  they  made  the 
rules  absolute  in  this  and  several  other  causes  wherein  the  same 
form  of  plea  had  been  filed.^ 


MANLOVE  V.  GALLIPOT. 

2  Illinois,  390.     [1837.] 

LocKwooD,  Justice,  delivered  the  opinion  of  the  court: 
This  was  an  action  of  ejectment  brought  in  the  Schuyler  Cir- 
cuit Court.  The  defendants  filed  their  plea  of  not  guilty,  on 
which  the  plaintiff  joined  issue.  Subsequently  to  the  joining 
issue  on  the  plea  of  not  guilty  the  plaintiff  had  the  defendants 
called,  and  upon  their  not  appearing,  had  their  default  entered, 
and  judgment  that  the  plaintiff  recover  his  term  and  costs  of  suit. 
This  was  clearly  erroneous.  After  issue  is  joined,  the  plaintiff, 
to  obtain  judgment,  must  proceed  and  try  his  cause  by  a  jury, 
in  the  same  manner  as  if  the  defendants  had  answered  to  their 
names  when  called.^ 

1  For  the  case  of   a  plea  merely  stricken  out  for  failure  to  appear  at 

false,  see  Idle  v.   Crutch,    1   Chitty  the  trial,  Cooper  v.  Buckingham,  4 

Eep.  525  note.  111.  456. 

1  Defendant 's    pleas    can    not    be 


180  JUDGMENTS   BY  DEFAULT.  [C HAP.  II. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs,  and 
the  cause  remanded  with  directions  to  the  court  below  to  set  aside 
the  judgment  by  default. 


MILLNER  V.  MILLER. 
4  Bihh.  (Eij.),  431.     [1816.] 

Opinion  of  the  court  by  Chief  Justice  Boyle. 

This  was  an  action  of  debt  upon  an  obligation  for  the  payment 
of  money. 

The  defendant  appeared  and  pleaded,  1st,  payment;  2ndly, 
a  setoff.  And  issues  being  thereupon  joined,  the  cause  was 
continued  until  the  next  term  of  the  court ;  when  the  defendant 
failing  to  appear,  judgment  was  taken  against  him  by  default, 
and  a  writ  of  inquiry  awarded,  which  being  executed  a  final 
judgment  was  entered  for  the  plaintiff.  To  reverse  which,  the 
defendant  prosecutes  this  writ  of  error  with  supersedeas. 

The  errors  assigned  question  the  correctness  of  taking  judg- 
ment by  default,  and  awarding  a  writ  of  inquiry,  when  issues 
were  joined  in  the  cause. 

Where  the  defendant  pleads  a  negative  plea  upon  which  issue 
is  joined,  it  is  no  doubt  erroneous  to  take  judgment  by  default, 
or  to  swear  the  jury  to  inquire  of  damages.  It  was  accordingly 
so  ruled  by  this  court  in  the  case  of  Williams  v.  Cheek  (Pr. 
Dee.  76). 

But  the  law  appears  to  be  well  settled,  if  the  defendant  pleads 
an  affirmative  plea,  and  afterward  makes  default,  that  judgment 
may  be  given  against  him  for  the  default.  As  in  an  action  of 
debt,  if  the  defendant  pleads  an  acquittance  or  release,  and  after 
makes  default,  judgment  shall  be  entered  upon  the  default, 
because  the  duty  is  acknowledged  (7  Vin.  Abr.  475).  So  in 
replevin,  if  the  defendant  avows,  and  afterward  makes  default, 
judgment  shall  be  thereupon  given  for  damages ;  because  the 
taking  and  detention  are  acknowledged.     (lb.) 

In  this  case  both  the  pleas  of  the  defendant  in  the  court  below 
are  in  the  affirmative.  They  admit  the  obligation  on  which  the 
action  is  founded,  but  contain  matter  in  discharge  of  it. 

It  was  incumbent,  therefore,  on  the  defendant  to  have  sus- 


fl 


Sec.  2.]  green  v.  hearne.  181 

tained  his  pleas  by  proof,  and  not  having  appeared  for  the 
purpose  on  the  day  given  him  by  the  court,  it  was  strictly  cor- 
rect to  enter  judgment  against  him  for  his  default. 

Judgment  affirmed. 


Section  2.     Effect. 

GREEN  V.  HEARNE. 

3  Term  Rep.,  301.     [1789.] 

This  was  an  action  on  a  bill  of  exchange  against  the  defendant 
as  acceptor;  and  the  declaration  stated  in  the  usual  form  that 
he  did  accept,  etc.  The  defendant  suffered  judgment  to  go  by 
default  in  Hilary  1787;  and,  at  the  execution  of  the  writ  of 
inquiry  in  the  last  vacation,  the  bill  of  exchange  was  produced, 
but  it  did  not  appear  to  have  been  accepted;  and  no  other  evi- 
dence was  produced.  The  jury  having  given  a  verdict  to  the 
amount  of  the  bill,  a  rule  was  obtained  at  the  beginning  of  the 
term  to  show  cause  why  the  judgment,  and  the  writ  of  inquiry 
executed  thereon,  should  not  be  set  aside;  the  former  on  an 
affidavit  of  merits,  namely,  that  in  fact  the  defendant  had  not 
accepted,  and  on  the  ground  of  negligence  in  the  defendant's 
attorney ;  the  latter,  for  insufficient  proof. 

Lord  Kenyon,  Ch.  J.,  said,  as  to  the  first  ground,  that  the 
defendant  should  have  applied  sooner  to  set  aside  the  judg- 
ment. And,  with  respect  to  the  other  objection,  that  the  bill 
produced  did  not  correspond  with  that  declared  on,  he  observed 
that  it  might  have  been  accepted,  though  not  in  writing;  and 
that,  by  suffering  judgment  to  go  by  default,  the  defendant  had 
admitted  the  cause  of  action  to  the  amount  of  the  bill. 

BuLLER,  J.  When  a  defendant  suffers  judgment  to  go  by 
default,  he  admits  the  cause  of  action.  And  thus  far  an  action 
on  a  bill  of  exchange,  and  an  action  for  money  had  and  received, 
are  alike;  but  beyond  that  there  is  no  similarity.  For,  in  the 
latter,  the  defendant  only  admits  something  to  be  due ;  and,  as 
the  demand  is  uncertain,  the  plaintiff  must  prove  the  debt  before 
the  jury.  But,  in  the  former,  as  the  bill  of  exchange  is  set  out  on 
the  record,  the  defendant,  by  suffering  judgment  to  go  by  default. 


182  JUDGMENTS   BY   DEFAULT,  [C HAP.  II. 

admits  that  he  is  liable  to  the  amount  of  it :  ^  here  then  the 
defendant  has  admitted  that  he  did  accept  the  particular  bill  of 
exchange  set  out  in  the  declaration ;  and  the  only  reason  for  pro- 
ducing it  to  the  jury  on  executing  the  writ  of  inquiry,  is  to  see 
whether  or  not  any  part  of  it  has  been  paid.  (See  Bevis  v. 
Lindsey,  2  Str.  1149.) 

Rule  discharged. 


RANDOLPH  V.  COOK. 
2  Porter  (Ala.),  286.     [1835.] 

Mr.  Chief  Justice  Satfold  :  The  action  was  assumpsit,  brought 
by  the  defendants  in  error,  on  a  promissory  note  drawn  in  their 
favor  by  Randolph.  The  note  bears  date  on  the  5th  of  June, 
1832;  is  payable  one  day  after  date,  and  the  writ  was  issued 
and  served  on  the  6th  of  the  same  month.  The  declaration  con- 
tains one  count  only,  which  is  on  the  note  in  the  usual  form,  and 
is  captioned  as  of  June  Term  of  the  County  Court,  1832,  this 
being  the  return  term.  At  the  same  term,  T.  J.  Abbott,  Esq., 
an  attorney  of  this  court,  entered  a  formal  appearance  for  the 
defendant,  on  the  Appearance  book,  in  the  manner  prescribed 
by  the  rule  of  court  for  entering  appearances  of  record ;  but  no 
plea  appears  to  have  been  tiled.  At  the  succeeding  December 
term,  the  record  states,  that  the  parties  came,  by  their  attor- 
neys ;  and  for  want  of  a  plea,  judgment  was  rendered  by  default ; 
to  reverse  which  the  defendant  below  prosecutes  this  writ  of 
error. 

He  assigns,  as  ground  of  error,  that  no  cause  of  action  is  shown 
in  the  plaintiff's  declaration,  inasmuch  as  the  note  declared 
on  was  not  past  due  when  the  action  was  brought. 

The  plaintiff  in  error  insists  that  he  had  the  whole  of  the  6th 
of  June  to  pay  the  note,  and  that  no  action  could  be  legally 
brought  till  the  7th,  fractions  of  days  not  being  recognized  by 
the  law.     This  position  is  not  contested  by  the  counsel  for  the 

1  The  writ  of  inquiry  appears  to 
have  been  unnecessary.  Shepherd  v. 
Carter,  4  Term  Eep.  275. 


Sec.  2.]  Randolph  v.  cook.  183 

defendant  in  error;  therefore,  it  is  unnecessary  to  examine  it. 
But  admitting  the  principle,  that  the  suit  was  prematurely- 
brought,  it  is  insisted  that  advantage  could  only  have  been 
taken  of  it,  on  or  previous  to  the  trial  below,  and  that  the  objec- 
tion has  been  waived.  This  is  the  only  question  necessary  to  be 
considered. 

A  rule,  which  appears  to  be  well  sustained  by  numerous 
authorities,  and  salutary  in  principle,  is  that  matter  merely 
abateable,  where  the  defendant  has  had  legal  notice  of  the 
process,  must  be  taken  advantage  of  by  plea;  else  the  objection 
is  considered  to  have  been  waived.  This,  I  understand  to  be  the 
rule  which  has  uniformly  prevailed  in  this  court,  and  that  it 
holds  equally,  whether  the  abateable  matter  be  apparent  on  the 
writ,  or  arises  from  extrinsic  circumstances.  If  there  be  a  mis- 
nomer of  plaintiff  or  defendant,  the  process  having  been  duly 
served  on  the  true  defendant,  and  a  good  declaration  filed,  for 
a  cause  of  action  corresponding  with  that  indicated  by  the  writ, 
the  exception  can  only  be  taken  by  plea,  within  the  time  allowed 
for  pleading.  An  objection  to  the  service  of  the  writ,  whether 
it  relates  to  the  officer  making  it,  or  the  time  or  manner  of 
execution,  has  uniformly  been  considered  to  be  waived  by  the 
regular  appearance  of  the  defendant,  and  suffering  a 
judgment  by  nil  dicit,  or  by  pleading  to  the  merits  of  the  action. 
Even  a  judgment  by  default,  where  there  has  been  due  service 
of  the  writ,  and  there  is  no  error  apparent  on  the  record,  is  an 
admission  of  the  cause  of  action  as  alleged  in  the  declaration. 
The  premature  commencement  of  this  suit  is  the  only  objection 
to  it.  After  having  been  regularly  served  with  the  writ,  the 
defendant,  by  his  attorney,  entered  his  formal  appearance  at 
the  return  term,  and  at  the  trial  term,  suffered  judgment  by 
default.  I  have  no  hesitation  in  saying,  that  in  cases  where 
the  record  does  not  disclose  the  fact  that  the  suit  has  been  pre- 
maturely commenced,  the  exception  is  allowable  on  motion  to 
exclude  the  evidence :  in  such  cases  this  would  be  the  only  means 
of  defence.     *     *     * 

The  only  difficulty  I  have  felt  in  this  case  has  been  to  determine 
whether  the  appearance  of  the  defendant,  and  the  judgment  by 
default  did  not  cure,  or  constitute  a  waiver  of  the  objection.  In 
reference  to  this  principle,  respectable  authority  has  maintained 
that  a  judgment  by  default  cures  only  such  defects  in  the  declara- 
tion as  would  have  been  aided  by  a  general  demurrer — that  the 


184  JUDGMENTS   BY  DEFAULT.  [C  HAP.  II. 

effect  of  a  demurrer  to  the  pleadings  is,  that  it  reaches  back 
through  the  whole  record,  and  attaches  ultimately  upon  the 
first  substantial  defect  in  the  pleadings,  on  which  ever  side  it 
may  have  occurred.  It  is  also  said  that  the  objection,  "that 
the  right  of  action  had  not  accrued  at  the  commencement  of  the 
suit,  may  be  pleaded  in  abatement;  as  where  an  action  on  a 
contract  is  commenced  before  the  time  appointed  for  the  per- 
formance;" but  that  this  plea  is  seldom  necessary;  because,  if 
the  defect  appear  upon  the  face  of  the  declaration,  it  is  fatal  on 
demurrer;  and  if  not  it  may  generally  be  taken  advantage  of 
on  the  trial.  The  remarks  of  Judge  Gould  do  not  fully  embrace 
the  particular  point  under  consideration;  where  the  defect  does 
not  appear  in  the  declaration  without  reference  to  the  capias 
ad  respondendum,  but  appears  from  the  latter;  and  where  there 
is  no  plea  to  the  merits,  nor  any  exception  taken  in  the  court 
below.  It  is  clear,  however,  that  the  issuance  of  the  capias,  with 
us,  is  the  commencement  of  the  suit.  From  the  other  authorities 
to  which  I  have  referred,  it  appears,  that  if  the  defect  appears 
from  the  pleadings,  and  has  not  been  waived  by  the  defendant's 
plea,  it  is  available  in  error ;  nor  do  those  cases  limit  the  inspec- 
tion of  the  revising  tribunal  to  the  pleadings  in  their  technical 
acceptation,  but  seem  to  consider  the  objection  fatal,  if  it  appear 
in  any  part  of  the  record,  and  to  regard  the  process  by  which  the 
suit  is  commenced  as  matter  of  record,  for  ascertaining  the  time. 
Several  other  early  English  cases  are  to  the  same  effect.  In 
"Ward  V.  Honeywood  (Doug.  61),  it  appeared  from  the  plaint 
that  suit  was  commenced  before  the  maturity  of  the  note,  which 
was  the  cause  of  action.  The  Court  of  King's  Bench,  held,  that 
the  plaint  was  to  be  considered  as  the  original  and  commence- 
ment of  the  action,  and  the  defect  thus  appearing  of  record,  the 
exception  was  available  in  error.  There  are  various  other 
decisions  to  the  same  effect.  Hence  I  conclude,  that  the  judgment 
must  be  reversed.^ 

1  But    some    statutes    of    Jeofails       f ective  pleading.     Winn  v.  Levy,  2 
make  a  default  operate  much  in  the       How.   (Miss.)   902. 
same  way  as  a  verdict  in  curing  de- 


Sec.  2.]  bowdell  v.  parsons,  185 

BOWDELL  V.  PARSONS. 

10  East,  359.     [1808.'] 

The  declaration  set  out  a  contract  by  which  the  defendant 
was  to  deliver  certain  hay  to  plaintiff  on  request  as  he  should 
want  it,  and  alleged  a  failure  to  deliver,  although  requested 
so  to  do,  without  stating  any  time  or  place.  After  judgment 
by  default  and  writ  of  inquiry  executed,  the  defendant  moved 
in  arrest  because  of  such  omission.^ 

Lord  Ellenborough,  C.  J.    It  appears  to  me  that  the  second 
count  is  sufficient  to  sustain  judgment  for  the  plaintiff,  as  well 
as,  the  first.     The  question  comes  now  to  be  considered  by  us 
after  the  stat.  4  Ann.  c.  16  for  the  amendment  of  the  law ;  the 
first  section  of  which  enacts  "that  in  all  cases  where  any  de- 
murrer shall  be  joined,  etc.,  the  judges  shall  proceed  and  give 
judgment  according  as  the  very  right  of  the  cause  and  matter 
in  law  shall  appear  unto  them,  without  regarding  any  imperfec- 
tion, omission,  or  defect  in  any  writ,  etc.,  declaration,  or  other 
pleading,   etc.,   except  those  only  which  the   party   demurring 
shall  specially  and  particularly  set  down  and  express  as  cause 
of  demurrer;  notwithstanding  that  such  imperfection,  omission, 
or  defect,  might  theretofore  have  been  taken  for  matter  of  sub- 
stance, and  not  aided  by  the  stat.  27  Eliz.  c.  5 :  so  as  sufficient 
matter  appear  in  the  said  pleadings  upon  which  the  court  may 
give  judgment  according  to  the  very  right  of  the  cause."    Now 
it  is  admitted,  according  to  what  was  said  by  Lord  Mansfield 
in  Collins  v.  Gibbs  (2  Burr.  899),  that  this  being  a  motion  in 
arrest  of  judgment  is  to  be  considered  exactly  the  same  as  if 
the  question  had  arisen  on  general  demurrer.     Then  what  does 
the  statute  say  upon  the  subject :  after  specifying  the  want  of 
several  matters  of  form,  of  which  no  advantage  or  exception 
shall  be  taken,  it  proceeds  to  say  that  "the  court  shall  give  judg- 
ment according  to  the  very  right  of  the  cause  as  aforesaid,  with- 
out  regarding   any   such   imperfections,   omissions,   or   defects, 
or  any  other  matter  of  like  nature,  except  the  same  shall  be  spe- 
cifically  and  particularly   set   down   and   shown   for   cause   of 
demurrer."     Now  is  not  the  omission  to  repeat  a  venue   (for 

1  Statement   of   the   pleading  has 
been  condensed. 


186  JUDGMENTS   BY  DEFAULT.  [ChAP.  II. 

it  must  be  always  remembered  that  there  is  one  venue  well  laid 
in  the  declaration)  a  less  material  omission  than  the  want  of 
alleging  pro  ut  patet  per  recordum,  where  a  record  is  pleaded; 
which  is  one  of  the  instances  specified  where  the  omission  shall 
not  be  taken  advantage  of  without  being  specially  shown  as  cause 
of  demurrer;  for  that  is  an  omission  to  refer  to  that  by  which 
alone  the  allegation  is  to  be  proved;  but  here  the  omission  is 
of  that  which  is  mere  form.  It  is  said  that  a  request  must  be 
alleged :  and  so  it  is  :  but  then  it  is  said  that  it  is  not  duly  alleged : 
the  imperfection  however  consists  only  in  the  want  of  a  time  and 
place,  where  a  venue  was  before  laid;  an  omission  by  no  means 
of  equal  importance  with  several  of  those  instanced  in  the  statute. 
The  case  of  Bach  v.  Owen  (5  Term  Rep.  409),  is  relied  on,  as 
having  been  decided  on  this  objection  since  the  statute;  where 
Mr.  Justice  Buller  said,  "that  the  want  of  a  request  was  a 
substantial  defect  in  the  declaration,  and  that  where  it  was 
necessary  to  allege  a  special  request,  the  general  words,  though 
often  requested,  would  not  answer  the  purpose."  There  was  no 
judgment  however  in  that  case;  but  leave  was  given  to  amend; 
and  the  cases  referred  to  in  the  margin  of  the  report,  if  cited 
by  him,  as  supporting  that  position,  are  all  before  the  statute 
of  Anne.  Another  case  was  cited  of  Wallis  v.  Scott  (1  Strange, 
88),  which  came  on  upon  general  demurrer  subsequent  to  that 
statute :  but  there  judgment  was  ultimately  given  for  the  plaintiff 
when  the  court  was  full.  And  though  one  of  the  judges  in  the 
first  instance  threw  out  an  opinion,  that  where  a  request  was  by 
law  necessary  (which  he  thought  it  was  not  in  that  instance), 
the  general  averment  would  not  be  sufficient,  but  it  must  be 
particularly  set  forth,  that  the  court  might  judge  whether  it 
were  sufficient :  yet  it  is  to  be  observed,  that  the  healing  opera- 
tion of  the  statute  of  Anne  was  not  presented  to  the  considera- 
tion of  the  court.  Nor  was  it  so  in  the  case  of  Bach  v.  Owen; 
for  if  it  had,  I  think  the  objection  there  "must  have  been  over- 
ruled; because  it  was  not  only  an  objection  of  like  nature,  but 
of  less  force  than  several  of  those  stated  in  the  statute.  In 
this  case  there  is  an  allegation  of  a  request,  which  it  is  admitted 
would  be  sufficient  if  time  and  place  were  laid  with  it;  and  I 
am  of  opinion  that  the  want  of  those  since  the  statute  is  not  a 
sufficient  objection  in  arrest  of  judgment. 


Sec.  2.]  maunsell  v.  lord  MxVssareene.  187 

MAUNSELL  v.  LORD  MASSARBENE. 
5  Term.  Rep.,  87.      [1792.] 

The  defendant  having  suffered  judgment  by  default  in  an 
action  on  a  bill  of  exchange  for  £200  Irish  money,  the  plaintiff 
moved  to  refer  it  to  the  master  to  see  what  was  due  for  principal, 
interest,  and  costs : 

Park  opposed  it  on  the  ground  that  this  was  foreign  money, 
the  value  of  which  could  only  be  ascertained  by  a  jury.^  Bagshaw 
V.  Playn,  Cro.  Eliz.  536 :  and  Rands  v.  Peck,  Cro.  Jae.  617 ;  and 
he  observed  that  this  was  one  of  the  reasons  why  this  court 
refused  to  grant  a  similar  application  in  Messin  v.  Lord  Mass- 
areene,  ante,  4  vol.  493. 

Baldwin,  in  support  of  the  rule,  said,  that  it  would  not  be 
more  difficult  for  the  master  than  a  jury  to  ascertain  the  value 
of  this  money.  But  the  court  (Lord  Kenyon,  C.  J.,  being  absent) 
said,  that  there  was  the  same  reason  for  refusing  this  applica- 
tion that  th«re  was  in  the  case  of  Messin  v.  Lord  Massareene; 

and  they 

Discharged  the  Rule? 


TRIPP  V.  THOMAS. 

3  Barnewall  &  Cresswcll,  427.     [1824.] 

Case  for  words  imputing  subornation  of  perjury.     Judgment 
by  default.    At  the  execution  of  the  writ  of  enquiry  the  plaintiff 

1  Semble,  that  the  Court  had  the  wagon.     This  is   an  unlawful  entry 

power  to  assess  damages  without  a  into    a   man's   house    (which   is   his 

jury  even  in  tort  cases.     See  Bruce  castle),   an   invasion   upon  his  wife 

V.  Eawlins,  3  Wilson,  61   (1770),  in  and  family   at  peace   and  quietness 

which  it  was  said  by  Chief  Justice  therein,  frightened  and  surprised  by 

Wihnot    on    an    application    to    set  these    defendants;    who    under    pre- 

aside  an  assessment  of  damages  by  tense   of   information   received,   and 

a    jury.      * '  This    is    an    inquest    of  color  of  legal  authority,  demand  the 

of&ce  to  inform  the  conscience  of  the  keys  of,  and  search  all  the  boxes  and 

Court,    who,    if    they    please,    may  drawers  in  the  house, 
themselves  assess  the  damages,  but  2  After  default  in  debt  on  an  in- 

1  am  of  opinion  we  ought  not  to  in-  demnity  bond  the  damages  must  be 

terpose   in   this   case,   which   differs  proved, 
widely  from  the  case  of  stopping  the 


188  JUDGMENTS    BY   DEFAULT.  [ChAP.  II. 

offered  no  evidence,  but  his  counsel  addressed  the  jury,  and 
they  assessed  the  damages  at  £40. 

Ludlow  now  moved  to  set  aside  the  inquisition,  and  contended 
that  the  jury  were  not  justified  in  giving  damages  without  some 
evidence  by  which  they  might  be  guided  in  fixing  the  amount; 
or  that  the  damages  should,  at  all  events,  have  been  nominal. 

Abbott,  C.  J.  I  think  that  we  cannot  disturb  the  finding  of 
the  jury.  The  defendant  by  suffering  judgment  by  default 
admitted  the  speaking  of  the  words  as  alleged  in  the  declaration. 
It  was,  therefore,  unnecessary  to  give  evidence  to  that  effect. 
The  plaintiff  did  not  produce  any  evidence  in  aggravation,  it 
cannot  therefore  be  presumed  that  the  jury  were  misled,  or  that 
they  estimated  the  damages  on  erroneous  grounds. 

Rule  refused. 


STRONG  v.  CATLIN. 

3  Pinney  (Wis.),  121.     [1850.] 

Action  of  assumpsit  brought  by  Albert  Catlin  against  Moses  M. 
Strong. 

The  summons  by  which  the  action  was  commenced  was  not 
sealed  with  the  seal  of  the  court.  It  was  served  personally  on 
the  defendant.  He  did  not  appear,  and  being  in  default,  the 
court  in  term  time,  without  interlocutory  judgment  having  been 
entered,  ordered  the  clerk  to  assess  the  plaintiff's  damages,  and 
he  reported  that  he  had  assessed  them  at  $298.95,  and  upon  his 
report  judgment  was  given  for  the  plaintiff  and  against  the 
defendant  for  that  sum  and  costs,  and  the  defendant  brought 
this  writ  of  error. 

Larrabee,  J.  The  summons  by  which  this  action  was  com- 
menced had  no  seal;  but  this  was  clearly  one  of  those  defects 
provided  for  in  the  statute  of  amendments,  and  was  cured  by 
verdict. 

Where  the  defendant  suffers  a  default  to  be  entered  against 
him  in  an  action  of  assumpsit,  the  judgment  in  the  first  instance 
is  only  interlocutory ;  and  this  must  be  entered  before  the  plaintiff 
can  proceed  to  have  his  damages  assessed,  or  to  complete  his 
final  judgment  in  the  case. 


I 


Sec.  3.]  dobbs  v.  passer.  189 

No  interlocutory  judgment  was  entered,  but  a  final  one,  of 
which  complaint  is  now  made.  This  must  be  reversed,  and  the 
plaintiff  can  proceed  to  enter  his  interlocutory  judgment  at  the 
next  term  of  the  Circuit  Court.^ 

Judgment  reversed. 


Section  3.     Setting  Aside  and  Opening. 

DOBBS  V.  PASSER. 

2  Strange,  975.     [1734.] 

The  plaintiff  signed  judgment  in  ejectment,  and  before  he  had 
lost  any  trial  the  defendant  applied  to  set  it  aside,  though  strictly 
regular,  upon  payment  of  costs,  and  taking  notice  of  trial ;  which 
the  plaintiff  refused.  And  the  court  being  applied  to,  a  dis- 
tinction was  offered  between  ejectments  and  all  other  actions, 
because  the  right  was  not  bound,  but  a  new  ejectment  might 
be  brought.  Sed  per  curiam,  That  distinction  held  formerly 
in  many  instances  where  it  is  now  exploded,  you  could  not 
formerly  have  a  new  trial  as  you  now  may;  and  great  incon- 
veniences may  arise  from  changing  the  possession,  timber  may 
be  felled,  etc.,  and  as  the  Common  Pleas  makes  no  difference,  and 
we  are  got  into  their  way  in  all  other  actions,  it  is  proper  to  do 
it  here  too.^    {Vide  Doe  ex  dem.  Troughton  v.  Roe,  4  Burr.  1996.) 


HART'S  ADM'R  v.    WALKER. 

31  Missouri,  26.      [I860.] 

This  was  an  action  on  a  promissory  note.    On  the  second  day 
of  the  return  term,  a  judgment  by  default  for  want  of  an  answer 

1  In  a  number  of  states  the  stat-  rot  to  give  him  the  advantage  of  a 
utes   provide   for   an   assessment   of  nicety  in  pleading. ' '    Forbes  v.  Mid- 
damages  by  the  Court  unless  a  jury  dleton,  2  Strange,  1242. 
is  demanded.     See  Par.  59,  Ch.  110,  The  requirement  of  a  detailed  affi- 
111.  E.  S.,  1913.  davit  of  merits  appears  to  have  or- 

i"The    Court    said    that    it    was  iginated  somewhat  later.     See  Oak- 

never  to  be  done,  but  where  the  de-  ley  v.  Giles,  3  East,  167,  ante,  p.  12. 
fendant  was  to  plead  to  the  merits, 


190  JUDGMENTS   BY  DEFAULT.  [ChAP,  II. 

was  taken  against  the  defendants.  On  the  same  day  and  before 
the  adjournment  of  the  court,  the  defendants  moved  the  court 
to  set  aside  the  judgment  by  default  and  for  leave  to  file  an 
answer  immediately.  The  court  overruled  the  motion.  There 
was  no  bill  of  exceptions  signed  by  the  judge.  The  term  con- 
tinued more  than  three  days.  The  defendants  appealed  to  the 
Supreme  Court. 

Scott,  Judge,  delivered  the  opinion  of  the  court. 

It  appears  from  the  record  that  the  term  of  the  Stoddard 
Circuit  Court,  at  which  the  judgment  in  this  cause  was  rendered, 
continued  for  more  than  two  days.  The  defendants  therefore 
had  the  whole  of  the  second  day  on  which  to  plead,  even  though 
the  cause  was  set  for  that  day  and  was  called  on  that  day  in 
its  turn.  The  arrangement  of  the  docket  could  not  deprive  them 
of  a  right  conferred  by  law.  Having  the  whole  of  the  second 
day  on  which  to  plead,  a  judgment  by  default  could  not  be  taken 
on  that  day  against  the  defendants.  It  could  not  be  taken  earlier 
than  the  third  day.  As  the  judgment  by  default  was  not  taken 
regularly,  the  defendants  were  entitled  to  have  it  set  aside 
without  an  affidavit  of  merits.  The  granting  the  motion  was  not 
a  favor,  and  the  court  could  impose  no  terms.  It  was  a  legal 
right  and  they  could  insist  on  it  as  such.  After  the  motion  was 
overruled,  the  defendants  should  have  filed  a  bill  of  exceptions 
and  preserved  their  motion  in  it  and  the  action  of  the  court 
upon  it,  which  should  have  been  signed  by  the  judge.  As  the 
matter  stands,  there  being  no  bill  of  exceptions,  the  judgment 
must  be  affirmed.^ 


CLOUGH  V.  MOORE. 

63  New  Hampshire,  111.     [1884.] 

Clark,  J.  The  power  to  set  aside,  vacate,  modify,  or  amend 
judgments  for  sufficient  cause,  is  unquestioned.  Adams  v.  Adams, 
51  N.  H.  388 ;  Judge  of  Probate  v.  Webster,  46  N.  H.  518 ;  Bel- 
lows v.  Stone,  14  N.  H.  203.    In  some  form  of  procedure  a  party 

1  And  so  in  case  of  defective  serv- 
ice.   Norton  v.  Ey.,  97  Cal.  390. 


11 


Sec.  3.]  clough  v.  moore.  191 

is  entitled  to  relief  from  a  judgment  rendered  by  accident  or  mis- 
take or  through  fraud,  or  in  respect  to  which  any  fact  exists 
which  proves  it  to  be  against  conscience  to  execute  the  judgment  of 
which  the  party  was  prevented  from  availing  himself  by  fraud, 
accident,  or  mistake,  unmixed  with  any  fault  or  negligence  of 
himself  or  his  agents.  Currier  v.  Gilman,  55  N.  H.  364 ;  Hibbard 
V.  Eastman,  47  N.  H.  507 ;  Wingate  v.  Haywood,  40  N.  H.  437. 
Whether  the  motion  to  bring  forward  these  actions  and  vacate 
the  judgments  should  be  granted,  is  a  question  of  fact  to  be  de- 
termined at  the  trial  term.    Bank  v.  Clement,  58  N.  H.  533. 

It  is  contended  that  the  facts  upon  which  the  motion  is  based 
furnish  no  sufficient  cause  for  granting  it  if  proved  by  competent 
evidence.  It  is  a  fundamental  principle  of  the  law,  that  judg- 
ment ought  not  to  go  against  a  party  without  an  opportunity  to 
make  defence ;  and  judgments  rendered  without  notice  are  void- 
able. Gay  V.  Smith,  38  N.  H.  171,  174.  Ordinarily  it  would 
seem  to  be  sufficient  cause  for  vacating  a  judgment  that  it  was 
rendered  without  notice  to  the  defendant,  who,  having  a  suffi- 
cient defence,  was  prevented  from  making  it  for  want  of  such 
notice,  without  fault  or  negligence  on  his  part.  A  party  ought 
not  to  be  permitted  to  retain  the  fruits  of  a  judgment  to  which" 
he  is  not  entitled,  neither  should  he  be  compelled  to  submit  to 
a  judgment  which  unjustly  concludes  his  rights  without  an  oppor- 
tunity to  be  heard.  Such  a  result  can  happen  only  through  a 
defective  administration  of  justice.  It  is  conceded  that  a  judg- 
ment obtained  by  fraud  should  be  vacated,  because  a  party  ought 
not  to  be  permitted  to  profit  by  his  fraud.  How  does  the  fact 
that  a  party  is  free  from  fault  entitle  him  to  retain  the  benefits  of 
an  unjust  judgment?  To  enforce  a  judgment  obtained  without 
notice  is  no  less  injurious  to  the  defendant,  than  to  obtain  a 
judgment  fraudulently  Avithout  any  attempt  to  give  notice.  In 
either  case  the  defendant  is  defrauded,  and  the  plaintiff  obtains 
an  unjust  advantage. 

There  is  no  conclusive  presumption  that  a  copy  or  summons 
left  at  the  defendant's  place  of  abode  came  to  his  knowledge. 
Upon  the  question  of  actual  notice,  the  return  that  a  copy  or 
summons  was  left  is  evidence,  but  not  conclusive.  The  rights 
of  the  plaintiff  are  secured  by  permitting  him  to  have  judgment 
upon  proof  that  the  statutory  notice  has  been  given.  If  his  cause 
of  action  is  well  founded,  his  judgment  is  in  no  danger  of  being 
reversed  or  vacated.     If  it  is  not  well  founded,  the  defendant 


192  JUDGMENTS   BY  DEFAULT.  [ChAP.  II. 

should  not  be  compelled  to  submit  to  it  unless  he  has  in  some 
way  forfeited  his  right  to  question  its  validity ;  and  upon  showing 
that  he  has  a  defence,  and  that  he  had  no  notice  of  the  plaintiff's 
action,  he  ought  ordinarily  to  be  permitted  to  try  his  case.  Judg- 
ments are  rendered  on  default  upon  a  return  of  service  by  leav- 
ing a  copy  or  summons  at  the  last  and  usual  place  of  abode  of  the 
defendant,  or  by  publication,  upon  the  assumption  that  the  de- 
fendant having  notice  of  the  suit  has  admitted  the  plaintiff's 
claim  by  failing  to  appear  and  contest  it.  The  record  shows  a 
legal  service  ;  but  in  every  case  where  the  defendant  has  no  actual 
notice  of  the  suit,  the  record,  so  far  as  it  implies  notice,  is  in- 
correct, and  the  judgment  is  rendered  upon  an  erroneous  assump- 
tion of  fact.  To  hold  the  return  of  service  conclusive  evidence 
of  notice  would  in  all  such  cases  deprive  the  defendant  of  any 
opportunity  of  defence. 

If  the  defendant  is  entitled  to  relief,  this  is  the  appropriate 
form  of  remedy.  It  is  comparatively  speedy  and  inexpensive. 
There  is  no  occasion  or  excuse  for  compelling  a  party  to  resort  to 
another  process,  when,  by  bringing  forward  the  original  action, 
all  errors  may  be  corrected  and  justice  administered.  Mclntire 
v.  Carr,  59  N.  H.  207 ;  Metealf  v.  Gilmore,  59  N.  H.  417,  435 ; 
Moore  v.  Carpenter,  ante  65.  No  serious  inconveniences  can 
result  from  granting  relief  from  judgments  rendered  without 
notice.  It  is  not  to  be  apprehended  that  a  defendant  having  a 
valid  defence  will  suffer  judgment  to  go  against  him  by  default, 
with  a  view  of  obtaining  an  opportunity  to  make  his  defence  at 
some  future  time  by  a  perjured  denial  of  notice  of  the  original 
action.  Nor  is  it  to  be  assumed  that  judgments  will  be  modified 
or  vacated  except  for  sufficient  cause. 

The  finding  of  the  court  must  be  set  aside.  The  facts  and 
conclusions  stated  in  the  reserved  case  in  Moore  v.  Carpenter 
were  not  competent  evidence.  No  judgment  or  decree  had  been 
rendered  in  that  case.  The  verdict  or  findings  of  a  tribunal  upon 
which  no  judgment  has  been  rendered  are  not  competent  evi- 
dence to  control  or  influence  the  judgment  of  another  tribunal 
upon  the  same  question.  King  v.  Chase,  15  N.  H.  9,  13,  14 ;  Hay- 
ward  V.  Bath,  38  N.  H.  179.  Upon  competent  evidence,  the  court 
at  the  trial  term  will  determine  whether  justice  requires  that  the 
defendant's  motion  should  be  granted. 

Exceptions  sustained. 


1 


Sec.  3.]        ins.  co.  op  north  America  v.  swineford,  193 

INSURANCE  CO.  OF  NORTH  AMERICA  v.  SWINEFORD. 

28  Wisconsin,  257.     [1871.] 

Dixon,  C.  j.  *  *  *  The  facts  shown  by  the  affidavits  in 
excuse  of  the  default  and  failure  to  answer,  and  as  a  reason  for 
setting  aside  the  judgment  and  letting  the  defendants  in  to  a 
trial  on  the  merits,  are,  in  our  judgment,  insufficient.  They  show 
a  case  of  inexcusable  neglect  and  delay,  and  are  in  some  respects 
inconsistent  with  good  faith  and  fair  dealing  on  the  part  of  the 
defendants  or  their  agents.  The  loss  occurred  more  than  eight 
months  before  the  action  was  commenced,  and  it  was  over  three 
months  after  service  of  process  when  judgment  by  default  was 
taken.  In  the  meantime,  both  before  and  after  the  commencement 
of  the  action,  negotiations  were  pending  for  a  voluntary  settle- 
ment and  payment  of  the  loss.  The  liability  of  the  company  was 
not  seriously  denied,  and  promises  of  payment  were  made  as  well 
on  the  part  of  the  general  agent  of  the  company  as  of  one  or 
more  of  its  special  agents.  The  plaintiff  was  induced  to  believe 
that  her  claim  had  been  or  would  be  allowed  by  the  company,  and 
payment  made  without  objection.  It  furthermore  appears  that 
before  the  suit  was  commenced,  and,  the  inference  is,  a  con- 
siderable time  before,  the  agents  of  the  company — the  local  one 
at  Fond  du  Lac,  one  of  the  general  agents  for  the  northwestern 
states  at  Chicago,  and  a  special  agent  deputed  for  that  purpose — 
had  fully  investigated  the  facts  touching  the  loss.  It  does  not' 
appear  that  any  new  fact  or  material  circumstance  has  been  dis- 
covered since  those  agents  made  their  investigation.  The  facts 
are  such  as  they  ascertained,  and  as  w^ere  known  by  them  before 
the  action  was  commenced.  With  eight  months  intervening,  and 
three  -agents  engaged  in  the  investigation,  the  defendants  should 
have  been  prepared  at  the  end  of  the  time  either  to  pay  or  put  in 
their  answer.  There  was  no  good  reason  for  their  not  having  an- 
swered. The  sickness,  disability  or  business  engagements  of  one  of 
the  agents  at  Chicago,  was  no  excuse.  His  partner  was  not  sick  or 
disabled,  and  he  had  been  upon  the  ground  and  knew  the  facts. 
The  agent  who  was  sick  had  not.  The  answer  might  have  been 
prepared  under  the  direction  of  either  of  the  three  agents  who 
had  investigated,  and  have  been  verified  by  any  one  of  them.  The 
failure  to  answer  was,  therefore,  the  result  of  mere  inexcusable 
negligence  on  the  part  of  the  company  or  its  agents,  unless  the" 
practice  of  the  company  of  requiring  the  pleadings  in  actions 

H.  T.  P.— 13 


194  JUDGMENTS   BY  DEFAULT.  [ChAP.  II. 

against  it  to  be  sent  to  the  home  office  for  examination  and  advice, 
made  it  otherwise.  But  such  practice  did  not  necessarily  inter- 
fere with  or  prevent  an  answer  in  time  ;  and  if  it  had,  the  question 
would  be,  whether  the  law  should  conform  to  the  practice  of  the 
company,  or  the  practice  of  the  company  to  the  law.  We  think 
the  law  would  prevail  in  such  a  case,  and  that  the  company  must 
so  regulate  its  business  as  to  conform  to  the  law,  unless  some 
reasonable  excuse  is  shown. 

On  the  whole,  we  are  of  opinion  that  no  case  was  made  out  to 
justify  the  setting  aside  of  the  judgment,  and  that  the  order  of 
the  court  below  was  right.^ 

By  the  court.  Order  affirmed. 


ELLIS  V.  BUTLER. 

78  loiva,  632.      [1889.] 

Appeal  from  an  order  refusing  to  set  aside  a  judgment  by 
default  in  an  action  for  attorney  fees. 

Robinson,  J.  *  *  *  I.  The  affidavit  was  made  by  the  at- 
torney for  defendant,  and  shows  that  on  the  evening  of  the 
twenty-third  of  January  he  learned  that  it  was  necessary  for  him 
to  go  to  Elma,  in  Howard  County,  the  next  day,  on  urgent  and 
important  business ;  that  he  at  once  called  on  the  judge  who  was 
holding  the  term,  at  his  hotel,  and  informed  him  that  it  was 
necessary  to  go  to  Elma,  as  aforesaid,  requesting  that  he  be  ex- 
cused from  attendance  at  court;  that  he  was  informed  by  the 
judge  that  he  would  be  protected  so  far  as  it  could  be  done ;  that 
he  had  no  reason  to  believe  that  the  cause  would  be  reached  for 
trial  at  that  term,  and  that  the  court  had  stated  on  the  morning 
of  the  twenty-third  of  January  that  it  would  not  be  reached  for 
trial  at  that  term ;  that  before  leaving  for  Elma  he  prepared  an 
answer,  a  copy  of  which  is  attached  to  and  made  a  part  of  the 
affidavit;  that  he  did  not  file  the  answer  for  the  reason  that  he 

1  And  so  where  the  sickness  of  an  his     attorney,     excusable     mistake, 

attorney  would   not  have  prevented  neglect,     etc.,    there    is     frequently 

him  from  obtaining  an  extension  of  room  for  a  fair  difference  of  opinion, 

time  to  plead,   before   the   original  which  is  expressed  by  saying  that 

period    expired.      Byers    v.    Jacob,  the  trial  judge  has  a  wide  discretion 

164  Mo.  141.  in  such  matters.     Hulbert  v.   Tred- 

From  the  nature  of  the  question  way,  159  Mo.  665. 
involved,  negligence  of  the  party  or 


Sec.  3.]  ellis  v.  butler,  195 

was  awaiting  a  decision  on  the  motion ;  that  before  starting  for 
Elma  he  had  no  reason  to  believe  that  he  should  not  return  to 
Charles  City  on  the  evening  of  the  twenty-fourth;  that  he  was 
unavoidably  detained  at  Elma  on  that  evening  until  it  was  too 
late  to  reach  Charles  City,  to  which  he  had  to  drive,  a  distance 
of  twenty-five  miles;  that  he  left  Elma  early  the  next  morning, 
and  arrived  at  Charles  City  at  about  eleven  o'clock  in  the  fore- 
noon. 

It  is  insisted  that  the  affidavit  does  not  show  due  diligence  on 
the  part  of  the  defendant,  and  does  not  excuse  his  default.  It  is 
said  that  the  moton  to  transfer  the  cause  to  the  law  side  of  the 
calendar  did  not  assail  the  petition ;  hence  it  did  not  suspend  the 
necessity  of  pleading.  See  Code,  sections  2635,  2636,  2640.  The 
motion  was  filed  under  the  provisions  of  section  2516  of  the 
Code.  That  provides  that  a  defendant ' '  may  have  the  correction 
made  by  motion  at  or  before  the  filing  of  his  answer,"  where  the 
wrong  proceedings  have  been  adopted.  It  is  clear  that  defendant 
had  a  right  to  insist  upon  a  ruling  on  his  motion  before  he  filed 
his  answer ;  hence  he  was  not  negligent  in  not  filing  it  until  after 
that  ruling  was  made. 

Appellant  relies  in  part  upon  the  alleged  promise  of  the  judge 
to  protect  him  so  far  as  he  could,  and  upon  the  statement  of  the 
court  that  the  case  would  not  be  reached  for  trial  at  that  term ; 
but  we  must  presume  that  the  court,  in  ruling  on  the  motion,  con- 
sidered all  matters  of  which  it  had  personal  knowledge,  and  that, 
so  far  as  such  matters  may  not  have  been  fully  shown  by  the  rec- 
ord, they  tend  to  sustain  its  ruling.  The  court  knew  what  it  had 
announced  in  regard  to  the  trial  of  this  cause,  and  what  the  judge 
had  said  to  the  attorney  for  defendant;  and  we  must  conclude 
that  nothing  was  so  announced  or  said  which  justified  defendant 
in  believing  that  an  answer  would  not  be  required  within  the  time 
fixed  by  law. 

But  the  affidavit  shows  that  the  attorney  for  defendant  was 
called  away  from  court  on  urgent  and  important  business;  that 
the  motion  to  transfer  to  the  law  side  of  the  calendar  had  not 
been  determined;  that  before  he  left  he  prepared  an  answer, 
which  set  forth  a  meritorious  defense  to  most  of  plaintiffs'  claim ; 
that  when  he  left  he  expected  to  return  to  Charles  City  in  the 
evening  when  a  ruling  on  the  motion  might  be  expected,  and  be- 
fore the  case  was  called  for  trial;  that  he  was  unavoidably 
detained  at  Elma,  and  in  consequence  was  not  able  to  reach 


196  JUDGMENTS    BY   DEFAULT.  [ChAP.  11. 

Charles  City  until  eleven  o'clock  of  the  morning  during  which 
the  case  was  reached  for  trial,  and  default  and  judgment  were 
entered  against  his  client.  These  matters  could  not  have  been 
within  the  knowledge  of  the  court.  They  show  an  intent  to 
appear  and  defend  on  the  merits,  and  we  also  think  they  show 
due  diligence  on  the  part  of  defendant  to  prepare  and  present  his 
defense.  It  was  within  the  power  of  the  court  to  impose  such 
terms  upon  the  setting  aside  of  the  default  as  would  have  been 
just  to  defendant,  and  as  would  have  protected  the  plaintiffs.  We 
are  of  the  opinion  that  it  erred  in  refusing  to  set  the  default 
aside.  See  Code,  §  2871 ;  Ordway  v.  Suchard,  31  Iowa,  481 ; 
Westphal  v.  Clark,  46  Iowa,  264;  Jean  v.  Hennessy,  74  Iowa, 
349 ;  McNulty  v.  Everett,  17  Iowa,  581 ;  Wishard  v.  McNeil,  ante 
p.  40. 

II.  It  is  claimed  that  the  affidavit  of  merits  was  not  sufficient. 
It  incorporated  a  copy  of  the  answer  which  had  been  prepared, 
and  stated  that  the  allegations  of  the  same  were  true.  The  an- 
swer contains  a  denial  of  all  averments  of  the  petition,  not  ad- 
mitted, and  states  that  defendant  consulted  plaintiffs  for  about 
half  an  hour,  but  never  retained  or  employed  them  in  regard  to 
the  claim  mentioned  in  the  petition,  nor  any  other;  that  in 
August,  1888,  he  visited  their  office  to  pay  for  the  consultation, 
when  they  demanded  of  him  two  hundred  and  fifty  dollars ;  that 
he  promptly  refused  to  pay  that  sum,  and  left  their  office,  but 
returned  a  short  time  thereafter  and  tendered  them  the  sum  of 
fifteen  dollars,  which  tender  was  refused ;  that  defendant  has 
been,  at  all  times  since  said  tender  was  made,  ready  and  willing 
to  pay  the  amount  of  the  tender.  We  think  the  answer  showed 
a  good  defense  as  to  the  claim  of  plaintiff  in  excess  of  fifteen  dol- 
lars. It  not  only  denied  the  allegations  of  the  petition  so  far  as 
they  were  not  admitted,  but  set  out  the  facts  of  the  case  as  claimed' 
by  the  defendant.  If  his  claims  are  well  founded,  the  judgment 
against  him  was  excessive. 

III.  Appellees  object  that  the  affidavit  was  not  made  by  the 
defendant,  but  by  his  attorney. ^  The  affidavit  shows  that  the 
attorney  had  knowledge  of  the  matters  alleged  in  the  answer,  and 
that  he  must  have  had  special  knowledge  of  the  cause  of  the  delay 
in  filing  it.  The  affidavit  was  therefore  sufficient.  Jean  v.  Hen- 
nessy, supra.  Reversed. 

1  Where  the  affidavit  is  made  by       Peoples    Ice    Co.    v.    Schlenker,    50 
an  agent  or  attorney,  it  must  appear       Minn.  1. 
that    he    had    personal    knowledge. 


CHAPTER  III. 
CONTINUANCES. 

Revised  Statutes  Missouri,^  1909. 

§  1956.  Applications  for  continuance  to  be  in  writing, 
unless.  Every  application  for  a  continuance  shall,  unless  the 
adverse  party  consent  that  it  be  made  orally,  on  oath  in  open 
court,  be  made  by  motion  in  writing,  accompanied  by  the  affi- 
davit of  the  applicant,  or  of  some  other  credible  person,  setting 
forth  the  facts  on  which  the  application  is  founded. 

§  1957.  Neglect  of  party  no  cause  for  continuance.  A 
continuance  shall  not  be  granted  for  any  cause  growing  out  of 
the  fault  or  negligence  of  the  party  applying  therefor. 

§  1958.  Continuances — Attorney  in  legislature.  In  all 
suits  at  law  or  in  equity  pending  in  any  court  of  this  state 
at  any  time  when  the  general  assembly  is  in  session,  it  shall 
be  a  sufficient  cause  for  a  continuance  if  it  shall  appear  to  the 
court,  by  affidavit,  that  any  party  applying  for  such  continuance, 
or  any  attorney,  solicitor  or  counsel  of  such  party,  is  a  member 
of  either  house  of  the  general  a.ssembly,  and  in  actual  attendance 
on  the  sessions  of  the  same,  and  that  the  attendance  of  such 
party,  attorney,  solicitor  or  counsel  in  court  is  necessary  to  a 
fair  and  proper  trial  of  such  suit ;  and  on  the  filing  of  such 
affidavit  the  court  may  continue  such  suit,  and  when  so  continued 
no  trial  or  other  proceedings  shall  be  had  therein  until  the 
adjournment  of  the  general  assembly,  nor  for  ten  days  there- 
after. Such  affidavit  shall  be  sufficient,  if  made  at  any  time 
during  the  session  of  the  general  assembly,  showing  that  at  the 
time  of  making  the  same  such  party,  attorney,  solicitor  or  counsel 
is  in  actual  attendance  upon  such  session  of  the  general  assembly. 

1  For  corresponding  provisions  in  iites  1913,  Ch.  110,  Par.  62,  63,  64, 
Illinois.     See  Hurd's  Eevised  Stat-       65,  67. 

197 


198  CONTINUANCES.  [ChAP.  III. 

§  1959.  Applications  shall  state  what  facts.  Applica- 
tions for  a  continuance  on  account  of  the  absence  of  witnesses 
or  their  evidence  shall  state  facts  which  show:  First,  the  mate- 
riality of  the  evidence  sought  to  be  obtained,  and  due  diligence 
upon  the  part  of  the  applicant  to  obtain  such  witness  or  testi- 
mony ;  second,  the  name  and  residence  of  such  witness,  if  known, 
or,  if  not  known,  the  use  of  diligence  to  obtain  the  same,  and 
also  facts  showing  reasonable  grounds  of  belief  that  the  attend- 
ance or  testimony  of  such  witness  will  be  procured  at  the  next 
term;  third,  it  shall  also  state  what  particular  facts  the  affiant 
believes  the  witness  will  prove,  and  that  he  knows  of  no  other 
person  whose  evidence  or  attendance  he  could  have  procured 
at  that  term,  by  whom  he  can  prove  or  so  fully  prove  the  same 
facts ;  fourth,  that  such  witness  is  not  absent  by  the  connivance, 
consent  or  procurement  of  the  applicant,  and  such  application 
is  not  made  for  vexation  or  delay,  but  in  good  faith  for  the 
purpose  of  obtaining  a  fair  and  impartial  trial, 

§  1960.  Insufficient  application  overruled,  otherwise 
SUSTAINED.  If  the  court  shall  be  of  the  opinion  that  the  affi- 
davit is  insufficient,  the  court  shall  permit  the  same  to  be 
amended;  and  if  after  such  amendment  the  affidavit  does  not 
contain  a  sufficient  statement  of  facts  as  herein  required,  the 
court  shall  overrule  the  same;  but  if,  upon  the  contrary,  the 
court  shall  find  the  affidavit  sufficient,  the  cause  shall  be  con- 
tinued, unless  the  opposite  party  will  admit  that  the  witness, 
if  present,  would  swear  to  the  facts  set  out  in  said  affidavit,  in 
which  event  the  cause  shall  not  be  continued,  but  the  party 
moving  therefor  shall  read  as  the  evidence  of  such  witness  the 
facts  so  stated  in  such  affidavit,  and  the  opposite  party  may 
disprove  the  facts  disclosed,  or  prove  any  contradictory  state- 
ments made  by  such  absent  witness  in  relation  to  the  matter  in 
issue  and  on  trial. 

§  1961.  Amendment  op  pleading,  when  cause  for  continu- 
ance. When  a  party  shall  amend  any  pleading  or  proceeding, 
and  the  court  shall  be  satisfied,  by  affidavit  or  otherwise,  that  the 
opposite  party  could  not  be  ready  for  trial  in  consequence  thereof, 
a  continuance  may  be  granted  to  some  day  of  the  same  term,  or 
to  the  next  regular  term  of  the  court. 


I 


DAT   V.   SAMSON.  199 

DAY  V.  SAMSON. 

Barnes'  Notes,  448.     [1741.] 

Upon  showing  cause  against  a  rule  for  putting  off  a  trial 
it  was  objected  to  the  affidavit,  ex  parte  Defendentis,  that  it  was 
made  by  a  third  person,  and  not  by  the  party  himself;  but  this 
was  overruled  by  the  court.  There  may  be  many  cases  where 
a  third  person  can  swear  another  to  be  a  material  witness,  and 
the  defendant  himself  cannot ;  as  where  a  factor  sells  goods  for 
his  principal,  and  employs  a  porter  to  deliver  them;  the  factor 
knows  the  porter  to  be  a  material  witness,  but  the  principal 
does  not,  etc.  The  court,  took  another  objection  to  the  affidavit, 
which  runs  thus :  That  A.  B.  and  C.  D.  are  material  witnesses 
for  defendant  in  this  cause,  without  whose  evidence  defendant 
cannot  safely  proceed  to  trial,  as  defendant  is  advised,  and  verily 
believes.  The  belief  seems  to  go  through  the  whole,  as  well 
as  to  A.  B.  and  C.  D.  being  material  witnesses.  As  to  the  other 
necessary  part  of  the  affidavit  (that  is)  that  the  party  cannot 
safely  make  defence  without  their  testimony,  though  the  former 
part  (that  is)  A.  B.  and  C.  D.  being  material  witnesses,  ought 
to  be  positively  sworn ;  belief,  as  to  it,  is  not  sufficient ;  but  as  to 
the  latter  part  it  is.  These  two  requisites  ought  not  to  be  coupled, 
but  disjoined.  The  court  enlarged  the  rule  that  the  affidavit 
might  be  amended;  which  being  done,  a  rule  was  made  to  put 
off  the  trial.    Skinner  for  defendant ;  Wynne  for  plaintiff. 


LORD  V.  COOKE. 

1  Wm.  Blachstone,  436.     [1763.] 

Motion  to  put  off  a  trial,  on  the  usual  affidavit  of  the  absence 
of  a  material  witness,  who  was  gone  to  the  East  Indies,  and  not 
expected  home  under  eighteen  months.  The  court  would  not 
grant  the  rule  nisi,  unless  the  defendant  would  engage  to  make 
a  special  case,  stating  the  nature  of  the  demand,  and  what  it 
was  the  witness  could  prove.  Which  being  accordingly  done, 
the  court  thought  it  not  sufficient  to  stay  the  trial ;  and  therefore 
discharged  the  rule  that  had  been  obtained  to  show  cause. 


200  CONTINUANCES.  [ClIAP.  Ill, 

HILL  V.  PROSSER. 

3  Dowling,  704.      [1835.] 

This  was  an  application  by  the  defendant  to  postpone  the  trial 
of  a  cause  till  the  sittings  in  Trinity  term,  upon  an  affidavit  of 
the  absence  of  a  material  witness. 

W.  H.  Watson,  in  showing  cause,  objected  that  there  was  no 
affidavit  of  merits. 

Parke,  B.  Generally,  upon  such  a  supervenient  discovery 
as  the  absence  of  a  material  witness,  it  is  not  necessary  to  swear 
to  merits  for  the  purpose  of  a  motion  of  this  nature.^ 

The  ride  was  disposed  of  on  other  grounds. 


n 


REX  V.  LE  CHEVALIER  D'EON. 

3  Burrow,  1513.      [1764.] 

Monsieur  D'Eon,  who  came  over  hither  in  the  quality  of 
secretary  to  M.  le  Due  de  Nivernois,  the  late  French  ambassador, 
and  after  the  duke's  departure,  remained  here  charged  with 
the  affairs  of  France,  was  afterwards  (upon  a  particular 
occasion)  invested  with  the  character  of  minister  plenipoten- 
tiary. Upon  the  arrival  here  of  the  present  French  ambassador, 
the  Count  de  Guerchy,  M.  D'Eon  set  up  a  press  in  his  own 
house,  and  in  his  book  there  printed  under  his  own  inspection, 
libelled  the  Count  de  Guerchy.  Upon  this,  an  information  was 
filed  against  him  by  Mr.  Attorney  General,  not  only  for  print- 
ing and  publishing  this  libel,  but  as  an  infractor  of  the  law 
of  nations  :  and  notice  of  trial  was  given.  Whereupon  M.  D  'Eon 
(by  his  counsel)  moved  to  put  off  the  trial,  on  account  of  the 
absence  of  several  material  witnesses,  whom  he  specified  in  his 
affidavit:  and  his  affidavit  contained  the  usual  assertions 
requisite  for  putting  off  a  trial,  and  particularly  "that  they 
were  material  witnesses  for  him ;  that  he  could  not  safely  go  to 
trial  without  their  evidence ;  and  that  he  had  hopes  and  expecta- 
tion of  procuring  their  presence  by  next  Michaelmas  term." 

1  But  see  City  of  Elgin  v.   Nops, 
212  111.  20. 


II 


REX   V.    LE    CHEVALIER   d'eON.  201 

Upon  showing  cause  against  putting  off  the  trial,  it  appeared 
that  the  libel  was  not  printed  or  published  till  March  or  April ; 
and  that  these  witnesses  went  away  from  England  to  France, 
in  the  preceding  November  or  December.  It  appeared  also,  that 
they  were  natives  of,  and  resident  in  France ;  that  they  were 
in  the  service  of  that  crown;  and  that  there  was  no  probability 
of  their  being  sent  over,  or  even  permitted  to  come  over,  to  give 
evidence  on  behalf  of  M.  D'Eon  (who  stood,  at  this  time,  in 
no  favorable  light  at  his  own  court,  but  very  much  otherwise). 
After  a  full  hearing  of  counsel  on  both  sides  (M.  D'Eon  being 
present),  the  court  were  unanimous  that  there  appeared  no 
sufficient  reason  for  putting  off  the  trial. 

They  granted  that  in  all  cases,  whether  criminal  or  civil, 
and  whether  the  nature  of  the  proceeding  be  instantaneous  or 
otherwise,  a  trial  shall  not  be  so  hurried  on,  as  to  do  injustice 
to  the  defendant ;  an  affidavit  in  common  form  may  be  sufficient 
where  no  cause  of  suspicion  appears :  but  men  take  such  latitude 
to  swear  in  the  common  form,  that  where  a  suspicion  arises  from 
the  nature  of  the  question  or  from  contrary  affidavits,  the  court 
will  examine  into  the  ground  upon  which  the  delay  is  asked; 
and  have,  in  criminal  as  well  as  civil  cases,  refused  to  put  off  a 
trial,  notwithstanding  an  affidavit  in  common  form. 

It  is  necessary  therefore  in  such  a  case  as  this  (1st),  to  satisfy 
the  court  that  the  persons  are  material  witnesses ;  2dly,  to  show 
that  the  party  applying  has  been  guilty  of  no  laches  nor  neglect, 
in  omitting  to  apply  to  them  and  endeavor  to  procure  their 
attendance;  and  3dly,  to  satisfy  the  court  that  there  is  a 
reasonable  expectation  of  his  being  able  to  procure  their  attend- 
ance at  the  future  time  to  which  he  prays  the  trial  to  be  put  off. 
But  in  the  present  case,  all  these  reasons  fail. 
These  witnesses  are  sworn  to  be  material,  as  the  defendant 
apprehends  and  believes.  But  on  the  contrary,  it  appears 
(negatively)  that  they  can  not  be  material:  for,  as  they  were 
gone  out  of  England  some  months  before  the  printing  or  publica- 
tion of  this  book;  they  could  not  be  conusant  of  the  facts  of 
the  offence  laid  in  this  information.  If  their  knowledge  relates 
to  any  circumstances  that  may  serve  to  mitigate  the  punishment 
in  case  he  should  be  convicted,  that  sort  of  evidence  will  not  come 
too  late  after  conviction  of  the  offence,  and  may  be  laid  before 
the  court  by  affidavits. 

But  if  it  should  appear  upon  the  ease  proved  at  the  trial, 


202  coNTEsruANCES.  [Chap.  III. 

"that  the  defendant  was  prejudiced  by  refusing  this  delay," 
the  court  could  set  it  right  by  granting  a  new  trial :  which  had 
often  been  said  upon  like  occasions;  but  no  case  had  yet  hap- 
•pened,  where  any  prejudice  appeared  to  have  been  done  by  the 
court's  refusing,  upon  particular  circumstances,  to  put  off  a 
trial  notwithstanding  the  formal  affidavit. 

As  to  their  being  sent  out  of  the  kingdom  by  the  Count  de 
Guerchy  himself,  on  purpose  to  prevent  their  giving  testimony  in 
the  cause  (which  has  been  alleged),  there  neither  is  any  proof 
of  it,  nor  is  it  possible  that  it  could  be  so:  they  were  actually 
gone  before  the  fact  which  is  the  subject  of  the  charge  was  com- 
mitted. It  is  impossible  that  they  could  be  sent  abroad  by 
M.  de  Guerchy  to  prevent  their  giving  evidence  in  this  cause, 
the  foundation  of  which  did  not  exist  at  the  time  when  they  went. 
If  they  had  been  material  witnesses  for  the  defendant  in  this 
cause,  and  had  been  sent  away  by  the  person  on  whose  account 
the  prosecution  is  carried  on,  that  indeed  would  have  been  a 
sufficient  ground  for  putting  off  the  trial  till  they  could  be  had. 
But  here  is  no  pretence  for  such  an  insinuation.         j 

Neither  does  it  appear,  that  there  has  been  the  least  endeavor 
used  by  this  gentleman  or  any  on  his  behalf,  to  get  them  over. 

And  as  to  any  expectation  of  their  returning  to  England  by 
the  next  Michaelmas  term  or  at  any  future  time,  there  does  not 
seem  to  be  any  probability  of  it:  nor  does  the  defendant  lay 
before  the  court  any  grounds  of  such  an  expectation.  On  the 
contrary,  the  reverse  is  highly  probable ;  the  presumption  seems 
strong,  that  they  will  not  come.  They  cannot  be  compelled  to 
come:  and  it  does  not  seem  likely  that  they  will  be  ordered  to 
come,  for  this  purpose.  These  are  foreigners,  natives  of  and 
resident  in  France,  and  in  the  actual  service  of  that  king :  which 
renders  this  case  quite  different  from  the  ordinary  cases  of 
English  witnesses  being  accidentally  gone  abroad,  or  gone  for 
a  small  time  only,  and  expected  to  return  to  their  own  country, 
their  natural  home  and  residence. 

Upon  the  whole,  they  were  clearly  of  opinion  ''that  the  putting 
off  the  trial  could  not  tend  to  advance  justice,  but  on  the  con- 
trary would  delay  it;"  and  therefore  discharged  the  rule  for 
showing  cause  why  it  should  not  be  put  off. 

Rule  discharged. 

M.  D'Eon  was  soon  after  tried  and  convicted,  upon  so  clear 
evidence,  that  he  made  no  defence,  and  from  the  proof  against 


WORSLEY   V.    BISSET.  203 

him  by  witnesses  and  writings  under  his  hand,  it  was  impossible 
for  him  to  make  any  defence.  Yet  he  seems  to  have  sheltered 
himself  under  some  salvo,  in  swearing  the  persons  in  France  to 
be  "material  witnesses." 


WORSLEY  V.  BISSET. 

3  Douglas,  58.     [1782.] 

In  an  action  for  criminal  conversation  with  the  plaintiff's 
wife  the  defendant  obtained  a  rule  to  show  cause  why  the 
trial  of  this  cause,  which  stood  for  the  sittings  after  this  term, 
should  not  be  put  off  on  account  of  the  absence  of  Lord  Chol- 
mondeley,  who  was  at  Paris,  whom  the  defendant  apprehended 
to  be  a  material  witness,  and  whom  he  expected  home  in  the 
course  of  a  few  months.  But  it  not  appearing  that  any  appli- 
cation had  been  made  to  Lord  Cholmondeley  to  know  whether 
he  would  come  over  and  give  evidence,  the  rule  was  discharged, 
Lord  Mansfield  saying  that  it  was  by  no  means  of  course  to  put 
off  a  trial  on  such  a  general  affidavit. 


DALE  V.  HEALD. 

1  Carrington  &  Kirwan,  314.     [1844.] 

This  was  an  action  on  a  policy  of  insurance,  in  which  notice 
of  trial  had  been  given  for  the  Durham  Spring  Assizes,  1844.  At 
the  sitting  of  the  court  on  the  first  morning  of  the  assizes 
Knowles,  for  the  defendant,  applied  to  put  off  the  trial  until 
the  next  assizes  on  an  affidavit,  which  stated  that  issue  in  the 
cause  had  been  joined  on  the  23rd  of  February,  1844  (which 
was  just  in  time  to  allow  of  notice  of  trial  being  given  for  the 
assizes)  ;  that  the  action  involved  a  question  of  French  law,  and 
that  after  issue  joined,  a  messenger  had  been  sent  to  France  for 
the  purpose  of  procuring  the  attendance  of  a  material  and 
necessary  witness,  which  messenger  had  not  yet  returned. 

Temple,  for  the  plaintiff,  opposed  the  application  on  the  ground 
that  the  attendance  of  the  witness  might  have  been  procured  at 
an   earlier  period. 


204  CONTINUANCES.  [ChAP.  III. 

EoLFE,  B.,  however,  was  of  opinion  that  a  party  could  not 
be  presumed  to  know  what  evidence  he  would  require  until  after 
issue  joined,  which  in  this  case  had  been  done  just  in  time  to 
admit  of  notice  of  trial  being  given  for  the  assizes,  and  as  there 
appeared  to  have  been  no  delay  on  the  part  of  the  defendant  in 
procuring  the  attendance  of  the  witness  in  question,  he  accord- 
ingly allowed  the  application,  on  condition  of  the  defendant 
bringing  the  money  into  court,  and  paying  costs. 


MACKUBIN  V.  CLARKSON. 

5  Minnesota,  247.     [1861.] 

By  the  Court,  Atwater,  J.  The  first  error  alleged  on  the  part 
of  the  appellant,  is  the  refusal  of  the  court  below  to  grant  a 
continuance  on  the  affidavit  of  the  defendant.  The  affidavit 
stated  that  he  (defendant)  had  stated  the  facts  in  this  case  to 
H.  L.  Moss,  Esq.,  his  attorney,  and  that  he  is  advised  by  his 
said  attorney  that  he  cannot  safely  proceed  to  trial  without 
the  testimony  of  August  Hageman,  who  is  a  material  witness 
in  this  action.  That  said  Hageman  had  resided  in  St.  Paul 
during  the  past  year,  and  that  since  the  commencement  of  the 
court  he  had  informed  the  defendant  that  he  would  be  ready 
at  any  time  to  attend  and  be  present  at  the  trial  of  the  cause. 
That  on  the  evening  of  the  3d  of  October  the  deponent  had 
sent  to  the  residence  of  Hageman  to  have  him  in  attendance 
before  the  court,  and  was  informed  that  within  the  last  ten  days 
he  had  gone  to  Memphis,  Tennessee,  and  would  be  absent  three 
months.  The  affidavit  further  stated,  that  relying  upon  the 
promises  of  the  witness  he  had  not  subpoenaed  him,  had  no 
knowledge  of  his  intention  to  leave,  and  expected  to  be  able 
to  procure  his  testimony  at  the  next  term,  etc. 

The  affidavit  also  stated  that  one  Kittel  was  also  a  material 
witness  for  the  defendant.  That  he  had  been  absent  from  the 
state  since  the  cause  was  at  issue;  that  he  had  been  unable  to 
ascertain  his  residence  or  whereabouts,  but  that  he  was  expected 
to  return  to  the  state,  and  that  deponent  expected  to  be  able 
to  procure  his  testimony  at  the  next  term  of  the  court.  The  affi- 
davit did  not  state  what  was  expected  to  be  proved  by  either 
witness. 


EVANS   V.    POND.  205 

There  was  no  error  in  the  refusal  to  grant  a  continuance  on 
this  affidavit.  There  was  no  diligence  whatever  shown  to  pro- 
cure the  attendance  of  Hageman.  If  a  party  chooses  to  rel}^ 
upon  the  promise  of  a  witness  to  be  in  attendance,  without  sub- 
poenaing hira,  he  does  so  at  his  own  ri.sk,  and  cannot,  on  that 
ground,  claim  a  continuance  if  the  witness  does  not  keep  his 
agreement.  (Beaulieu  v.  Parsons,  2  Minn.  37.)  The  affidavit 
is  also  defective  in  not  showing  wherein  the  witnesses  were 
material.  The  facts  which  the  party  proposes  and  expects  to 
prove  by  the  witnesses  should  be  set  out  in  the  affidavit,  so  that 
the  court  may  judge  of  the  materiality  of  the  witness.  The 
party  himself  is  not  to  be  the  judge  of  the  materiality  of  testi- 
mony. If  this  were  so,  there  are  probably  few  cases  in  which 
an  adjournment  would  not  be  obtained,  once  at  least,  and  per- 
haps many  times.  We  are  aware  of  no  authorities  which  sustain 
a  continuance  on  such  an  affidavit,  and  if  there  are  any,  they 
are  entitled  to  little  weight.  The  least  that  can  be  required  on 
this  point  is,  that  the  party  should  state  that  he  has  stated  the 
facts  which  he  expects  to  prove  by  his  absent  witnesses  to  his 
counsel,  and  that  he  is  advised  by  his  counsel  that  he  cannot  safely 
proceed  to  trial  without  the  testimony  of  such  witnesses.  But  the 
better  and  correct  practice  is  as  above  stated,  to  set  forth  the 
facts  in  the  affidavit,  that  the  court  may  be  advised  as  to  whether 
the  testimony  is  necessary  or  otherwise.^     *     *     * 


EVANS  V.  POND. 

30  Missouri,  235.     [I860.] 

EwiNG,  Judge,  delivered  the  opinion  of  the  court. 
The  only  cjuestion  in  the  case  is  the  ruling  of  the  Circuit  Court, 
in  refusing  a  continuance. 

1  And  so  as  to  the  steps  taken  to  did  they  exist,  should  be  set  out  in 

obtain  the  testimony — Cooper,  J.,  in  the  affidavit.     It  is  not  enough,  un- 

Washington    County    v.    McCoy,     1  der    any    circumstances,    merely    to 

Minn.  100.     "There  is  no  allegation  swear  to  the  judicial  conclusion,  that 

that  a  subpoena  ever  issued,  or  that  due  diligence  had  been  used.     It  is 

he  refused  to  obey^  its  mandate,  or  for    the    Court    or    Justice    to    say 

that  even  a  request  had  been  made,  whether  the  acts  of  the  party  amount 

or  notice  given  him  of  the  time  and  to    due    diligence,    and    not    for   the 

place    where   his    testimony    was    to  affiant. " 
^have  been  taken.     All  these  things. 


206  coNTEsruANCES.  [Chap.  III. 

It  appears  from  the  record  that  the  cause  was  set  for  trial 
on  the  6th  of  May,  1858  (the  suit  being  on  a  promissory  note)  ; 
that  it  was  called  for  trial  on  that  day,  but  not  tried ;  was  again 
called  on  the  7th;  whereupon  the  appellant  filed  his  motion, 
with  an  affidavit,  for  a  continuance  on  account  of  the  absence 
of  certain  witnesses,  which  was  overruled.    The  affidavit  alleges 
that  after  the  cause  was  set  for  trial  and  in  ample  time  before 
the  day  of  the  trial,  the  affiant  caused  subpoenas  for  said  wit- 
nesses to  be  issued  and  placed  in  the  hands  of  the  sheriff;  that 
the  sheriff  returned  said  subpoenas  "not  found,"  and  that  as 
soon  as  the  affiant  discovered  this  fact,  which  was  not  until  the 
6th  day  of  May,  1858,  he  searched  for  said  witnesses,  and  had 
used  his  best  endeavors  to  find  them  and  procure  their  attendance. 
The  bill  of  exceptions  shows  that  the  subpoena  for  the  witnesses, 
on  account  of  whose  absence  the  application  for  a  continuance 
was  made,  did  not  issue  until  the  5th  of  May,  only  one  day  before 
the  cause  was  set  for  trial ;  and  this  was  the  first  time  any  steps 
were  taken  to  procure  the  attendance  of  the  absent  witnesses. 
We  think  the  application  fails  to  disclose  any  sufficient  grounds 
for  a  continuance,  and  that  it  was  properly  refused.^ 

Judgment  affirmed. 

Judge  Scott  concurs.    Judge  Napton  absent. 


1 


CONNER  V.  SAMPSON. 

22  Texas,  20.     [1858.] 

Error  from  Travis.  Tried  below  before  the  Hon.  A.  W.  Ter- 
rell. Suit  by  defendants  in  error  against  plaintiff  in  error. 
Defendant  in  the  court  below  applied  for  a  continuance,  on  ac- 
count of  the  absence  of  a  material  witness;  and  made  affidavit 
that  he  had  used  due  diligence  to  procure  his  testimony,  by  hav- 
ing the  witness  duly  subpoenaed,  during  the  term  at  which  the 

1  Pinney,  J.,  in  Davis  v.  River  Side  situation  or  location   of  the   absent 

Co.,  84  Wis.  262.     ' '  There  is  no  ab-  witness     or     desired     evidence,     the 

solute  standard  of  diligence.    It  de-  facilities  vrhich  may  be  employed  to 

pends  upon  the  usual  course  of  pro-  obtain  it,  and  aU  facts  and  cireum- 

cedure  and  course  of  business,  the  stances  of  the  case." 


MAYNAED   V.    CLEVELAND.  207 

application  was  made ;  but  it  did  not  appear  from  the  affidavit, 
or  otherwise,  on  the  record,  at  what  time,  or  under  what  circum- 
stances, the  witness  was  subpoenaed.  The  court  below  overruled 
the  application. 

Roberts,  J.  The  application  for  a  continuance  is  defective  in 
this,  that  it  does  not  show  that  the  witness  had  been  served  with 
a  subpoena,  a  reasonable  time  before  the  trial,  to  enable  him  to 
be  present  at  the  trial.  The  point  was  decided  at  Tyler  (1858), 
that  it  must  appear  from  the  affidavit,  unless  it  otherwise  appear 
of  record,  that  reasonable  time  has  been  given  the  witness  to 
make  necessary  preparations  to  attend  the  court  at  the  time  of 
the  trial,  otherwise  the  party  could  not  be  held  to  have  used  due 
diligence  to  procure  his  attendance.  AVhat  this  reasonable  time 
is,  must  depend  upon  the  distance  of  the  witness  from  the  court, 
and  other  surrounding  circumstances.  A  party  should,  if  prac- 
ticable, have  his  witnesses  served  with  a  subpoena  before  the 
commencement  of  the  court.  If,  however,  he  relies  upon  having 
done  it  during  the  term,  he  must  show  that  it  has  been  done  a 
reasonable  time  before  the  trial. 

This  affidavit  would  be  literally  true,  although  the  witness  had 
been  served  with  a  subpoena  twenty  miles  from  the  courthouse 
five  hours  before  the  cause  was  called  for  trial.  There  is  no 
return  upon  a  subpoena,  or  other  evidence  on  the  record,  which 
shows  that  diligence  has  been  used.  Without  some  such  exhibi- 
tion of  diligence,  in  some  way  or  other,  upon  the  record,  we  can- 
not say  that  the  court  below  erred  in  overruling  the  application 
for  continuance. 

Judgment  affirmed. 


MAYNARD  v.  CLEVELAND. 

76  Georgia,  52.     [1885.] 

Clarke,  J.  At  the  trial,  defendant  moved  for  a  continuance 
for  the  want  of,  and  in  order  to  obtain,  the  testimony  of  one 
Brantly.  By  him  he  desired  and  expected  to  prove  that,  in  wit- 
ness's presence,  Wilde  C.  Cleveland  had  actually  paid  to  him 
$500.  Defendant  had  all  along  known  that  Brantly  was  present 
at  the  transaction,  and  that  he  lived  out  of  the  county.     But, 


208  CONTINUANCES.  [ChAP.  III. 

although  the  case  had  been  in  court  several  years,  he  had  not 
sued  out  his  depositions,  nor  engaged  him  to  attend,  nor  even 
consulted  him  on  the  subject.  As  an  excuse  for  this  apparent 
negligence,  he  made  the  following  showing :  Defendant 's  counsel 
stated  that,  at  the  preceding  term,  he  had  heard  that  complain- 
ant expected  to  prove  by  Wilde  C.  Cleveland  that  the  latter  did 
not  in  fact  pay  to  defendant  the  $500  for  which  defendant  had 
given  him  a  receipt.  Thereupon,  he  called  on  said  Cleveland  to 
know  what  his  testimony  would  be  on  that  point.  W.  C.  Cleve- 
land replied  that,  to  the  best  of  his  recollection,  defendant's 
statement  was  correct.  Defendant  himself  swore  that  said  Cleve- 
land had  told  him  that  his  (defendant's)  statement  of  the  mat- 
ter was  correct ;  and  also  testified  that  said  Cleveland  and  said 
Brantly  were  the  only  persons  present  at  the  transaction.  Both 
defendant  and  his  counsel  swore  that  they  had  no  intimation  of 
any  change  in  W.  C.  Cleveland's  mind  on  that  point  until  the 
evening  preceding  the  trial,  when  they  discovered  in  depositions 
executed  that  afternoon  Cleveland 's  contrary  evidence.  Defend- 
ant swore  that  he  was  misled  by  this  course  of  W.  C.  Cleveland 
(who  was  brother  to  complainant)  into  the  belief  that  his  own 
statement  would  be  confirmed  by  that  of  W.  C.  Cleveland,  and 
contradicted  by  nobody,  and  therefore  did  not  deem  it  needful 
to  procure  Brantly 's  testimony.  He  also  exhibited  a  postal  card 
received  from  said  Cleveland  as  follows : 

"Dear  Sir — I  promised  Judge  Hall"  (who  was  and  is  defend- 
ant's counsel)  "at  your  last  court  to  come  over  to  Forsyth  dur- 
ing this  term.  He  requested  me  so  to  do ;  and  while  I  hope  sin- 
cerely that  you  will  neither  need  me  or  sustain  any  loss,  yet  I  am 
willing  to  do  anything  for  you,  and  will  be  over  Monday  night  or 
Tuesdaj^  morning,  and  desire  to  see  you  and  Judge  Hall  together. 
I  am  exceedingly  sorry  that  you  are  troubled  in  this  suit  as  you 
are,  and  truly  hope  that  you  will  come  out  victorious  in  toto. 

February  22,  1884.       '  Wilde  C.  Cleveland." 

The  case  was  called  Thursday,  the  28th  of  February.  Cleve- 
land had  come  as  promised,  but  had  not  apprised  defendant  or 
his  counsel  of  any  change  in  his  mind,  and  having  sudden  occasion 
to  leave  the  county  on  Wednesday  afternoon,  by  consent,  his 
depositions  were  taken  at  the  instance  of  complainant.  Immedi- 
ately upon  discovering  what  said  Cleveland  had  sworn,  every 
effort  practicable  was  made  to  get  Brantly  there.     It  was  ascer- 


MATNARD    V.    CLEVELAND.  209 

tained  that  he  was  somewhere  abroad,  traveling  in  the  interest  of 
a  Macon  mercantile  house,  and  could  not  be  found.  Defendant 
swore  that  he  did  not  ask  the  continuance  for  delay,  but  in  order 
to  get  Brantly's  testimony.     The  court  overruled  the  motion. 

It  was  not  disputed  below,  or  here,  that  the  testimony  of  Brant- 
ly  was  highly  material.  The  court  placed  its  judgment  on  the 
proposition  of  law,  that  as  the  misleading  of  the  defendant  was 
not  done  by  complainant  or  his  counsel,  a  continuance  could  not 
be  allowed.  This  court  has  repeatedly  held  that  continuances  are 
in  the  discretion  of  the  court,  and  that,  when  refused,  unless  there 
is  an  abuse  of  discretion,  this  court  will  not  interfere.  But  where 
it  plainly  appears  that  the  court  below  acted  on  an  erroneous 
notion  of  the  law,  and  that  without  that  error,  the  showing  would 
have  been  satisfactory,  and  that  in  consequence  of  the  refusal 
of  the  continuance  the  party  has  suffered  a  serious  disadvantage, 
we  hold  that  a  tribunal  for  the  correction  of  errors  of  law  has 
distinct  ground  for  reviewing  the  decision. 

That  defendant  suffered  a  serious  disadvantage  is  clear.  He 
and  Wilde  C.  Cleveland  were  both  parties  to  the  transaction 
under  inquiry.  Their  testimony  conflicted  on  the  precise  point. 
Brantly,  as  appears  by  his  affidavit  in  support  of  the  motion  for 
a  new  trial,  would  have  sworn  positively  to  seeing  W.  C.  Cleve- 
land actually  pay  over  a  large  roll  of  money  to  defendant,  at 
the  time  and  place  referred  to,  when  said  Cleveland  denied  that 
any  money  passed.  Wlio  can  say  that  this  would  not  have  turned 
the  scales  in  the  hands  of  the  jury  in  favor  of  defendant?  But 
it  is  claimed  that  it  has  been  held  that  the  absence  of  cumulative 
evidence  is  no  ground  for  a  continuance ;  and  that  if  a  party 
has  one  witness  present  to  testify  to  the  same  point,  he  cannot 
continue  to  get  another.  Surely,  where  the  only  witness  present 
to  testify  to  the  point  is  a  party  at  interest,  and  where  the  other 
party  contradicts  him,  it  cannot  be  the  iron  rule  of  the  law  that 
he  may  not  have  needful  time  and  fair  opportunity  to  bring  in 
disinterested  testimony  to  settle  the  dispute.  It  cannot  be  the 
policy  of  the  law,  which  discourages  an  unnecessary  and  expensive 
array  of  witnesses  to  one  point,  to  encourage  parties  to  rely  on 
their  own  contradicted  statements. 

In  5  Georgia,  80,  it  is  held,  "It  would  be  no  reply  to  his  want 
of  diligence  that  he  and  his  counsel  did  not  think  the  testimony 
would  be  needed  in  the  cause  until  it  was  on  trial."  That  was 
a  suit  against  indorsers  of  a  bill  of  exchange,  who,  by  the  well- 

H.  T.  p.— 14 


210  CONTINUANCES.  [ChAP.  III. 

settled  common  law,  were  entitled  to  demand  and  notice.  The 
bank  cashier,  who  made  the  demand  and  served  the  notices, 
though  residing  in  Columbus,  where  the  trial  occurred,  had  not 
been  subpoenaed,  nor  even  requested  to  attend.  When  the  cause 
was  being  tried,  the  cashier  could  not  be  found.  For  want  of 
this  indispensable  part  of  the  plaintiff's  case,  he  was  non-suited. 
On  his  motion  for  a  new  trial,  we  are  not  surprised  that  the  court 
should  hold  the  language  above  cited. 

The  case  cited  by  defendant  in  error  in  23  Georgia,  613,  has  for 
a  head-note,  "A  party  is  not  entitled  to  a  continuance  on  the 
grounds  of  the  absence  of  testimony,  unless  he  has  taken  some 
steps  to  procure  that  testimony. "  But  the  showing  set  forth  that 
defendant  had  "failed  to  take  the  witness's  depositions,  because 
he  expected  the  witness  to  be  present  at  the  trial. ' '  Here  was  a 
plain  case  of  laches. 

In  55  Georgia,  21,  during  the  trial,  defendant  moved  to  con- 
tinue because  he  was  surprised  at  the  testimony  of  plaintiff's 
witness,  and  desired  to  procure  contradictory  evidence.  There 
was  no  diligence  in  trying  to  learn  what  the  plaintiff's  witness 
would  say,  no  authorized  reliance  on  his  favorable  testimony,  no 
misleading:  Held,  that  there  was  no  legal  surprise  at  the  testi- 
mony of  his  adversary. 

In  King  v.  The  State,  21  Ga.  221,  the  defendant,  indicted  for 
assault  with  intent  to  murder,  claimed  surprise  because  the  prose- 
cutor testified  to  his  guilt,  and  asked  a  new  trial  in  order  to  get 
the  evidence  of  two  mtnesses,  whom  he  all  along  knew  to  have 
been  present  at  the  difficulty,  but  had  not  summoned,  because  he 
did  [not?]  anticipate  his  need  of  them.  He  was  not  misled  by 
anybody.  Such  surprise  was  manifestly  entitled  to  no  favor,  and 
received  none. 

Susan  Eberhart,  convicted  of  murder,  asked  a  new  trial  because 
a  continuance  had  not  been  allowed  her.  Her  grounds  were,  first, 
that  owing  to  the  recency  of  the  homicide,  and  her  arrest,  and 
the  public  excitement  against  her,  she  could  not  safely  go  to 
trial ;  second,  her  counsel  had  not  had  sufficient  time  to  prepare 
her  defense.  The  first  ground  was  mere  matter  of  opinion,  and 
obviously  was  better  left  to  the  discretion  of  the  presiding  judge 
than  to  a  distant  reviewing  tribunal,  who  could  not  so  well  know 
the  state  of  the  public  feeling.  The  latter  ground  showed  no  par- 
ticular, either  as  to  fact  or  law,  wherein  the  counsel  could  not  be 
prepared.     This,  too,  was  rightly  left  to  the  discretion  of  the 


MAYNARD   V.    CLEVELAND.  211 

court,  where  the  counsel  were  well  known.  In  that  case,  the 
Supreme  Court  held  that,  as  there  was  no  abuse  of  discretion 
apparent,  a  new  trial  would  not  be  granted. 

None  of  these  decisions  seem  at  all  in  the  way  of  a  new  trial 
in  the  case  at  bar.  In  Wilson  v.  Brandon  &  Shannon,  8  Ga.  136, 
it  was  ruled  that ' '  where,  on  the  trial  of  a  cause,  a  witness,  from 
mistake,  failed  to  prove  a  necessary  fact,  to  make  out  the  defense 
to  an  action,  the  witness  having  previously  assured  the  defendant 
that  he  could  and  would  do  so,  whereby  the  defendant  was  pre- 
vented from  procuring  other  evidence  to  prove  the  same  fact, 
which  it  would  have  been  in  his  power  to  do ;  and  a  recovery  was 
had  in  consequence  of  such  mistake,  both  on  the  part  of  the  wit- 
ness and  the  defendant :  Held,  that  such  mistake  operated  as  a 
surprise  on  the  defendant,  and  that  a  new  trial  should  be 
granted." 

The  case  at  bar  is  claimed  to  be  distinguished  from  that  last 
cited,  because  the  misleading  witness  here  was  not  the  defend- 
ant's, on  whom  he  had  a  right  to  rely,  but  the  complainant's,  on 
whom  he  was  not  authorized  to  rely.  Can  it  be  possible  that  this 
makes  any  difference?  When  W.  C.  Cleveland  was  summoned, 
or  examined,  as  a  witness  at  complainant's  instance,  did  that 
give  complainant  any  exclusive  property  in  him  or  his  evidence, 
so  that  defendant  might  not  consult  his  knowledge  of  the  facts, 
and  rely  upon  his  statements  as  to  his  evidence  ?  Nothing  is  more 
common  than  for  both  sides  to  subpoena  the  same  witness.  His 
testimony  may  be  indispensable  to  both.  In  part  it  may  favor 
one,  in  part  the  other.  Here  Cleveland's  postal  shows  that  Judge 
Hall  had  asked  him  to  attend  in  favor  of  defendant,  and  that  he 
had  promised  to  do  so.  The  presumption  of  law  is,  that  a  wit- 
ness, summoned  to  court  by  either  side,  comes  as  an  impartial 
witness  to  the  truth.  The  mere  fact  that  one  party  has  first  sum- 
moned him  may,  indeed,  excite  the  suspicion  of  the  other  party, 
that  his  adversary  has  ground  to  expect  to  be  benefited  by  the 
testimony.  Thus  he  may  be  put  upon  inquiry.  But  when  he 
has  actually  inquired  of  the  witness  himself,  and  been  told  that, 
on  a  certain  point,  he  will  support  the  inquirer,  then  whether 
the  inquiring  party  may  rely  on  him  or  not,  depends  on  all  the 
considerations  which  ought  to  influence  a  reasonable  man.  Why, 
in  this  case,  should  Maynard  have  distrusted  W.  C.  Cleveland? 
There  appeared  no  conflict  of  interest  between  them.  They  were 
both  defendants  to  this  bill,  brought  to  make  both  liable  for 


212  CONTINUANCES.  [ChAP,  III. 

wrong-dealing  between  them,  Cleveland  seemed  to  be  his  friend. 
Even  down  to  the  date  of  the  postal  card,  strong  assurance  was 
given  to  his  confidence.  If  anything  is  to  be  inferred  against  the 
prudence  of  trusting  him,  from  the  fact  that  the  complainant  had 
first  called  him,  that  inference  seems  exceedingly  weak  when  we 
consider  that  the  complainant  might  have  called  him  to  attest 
other  facts  in  the  case,  and  not  this  particular  one;  and  that  he 
might  have  been  exercising  his  right  to  put  upon  the  stand  a 
party  to  whom  he  was  opposed,  in  the  hope  of  forcing  a  confes- 
sion. Furthermore,  it  is  a  fact  that  the  pleadings  of  complainant 
did  not  allege  that  the  money  was  not  paid,  as  Maynard  claimed. 
Therefore,  it  did  not  appear  that  W.  C.  Cleveland  was  called  by 
complainant  for  the  express  and  sole  purpose  of  proving  that 
denial.  We  think  that,  when  that  fact  was  not  expressly  put  in 
issue  by  the  pleadings ;  when  defendant  had  no  ground  whatever 
to  expect  contradiction  from  any  other  source,  because  he,  Cleve- 
land and  Brantly  only  were  present ;  when  Cleveland,  his  friend, 
on  special  inquiry,  told  him  and  his  counsel,  separately,  that  de- 
fendant 's  statement  was  correct ;  and  when,  without  any  intima- 
tion to  the  contrary,  he  gave  the  assurances  contained  in  the 
postal  card,  Maynard  could  not  be  charged  with  unauthorized 
credulity  in  relying  upon  his  support  in  his  testimony ;  nor  could 
he  be  charged  with  negligence  in  not  encumbering  the  case  and 
increasing  the  labor  and  cost  by  taking  Brantly 's  interrogatories 
to  prove  what  was  not  denied  by  the  pleadings,  and,  it  seemed, 
was  not  to  be  denied  by  any  witness,  but  rather  to  be  attested  by 
two.  We  think  that  the  continuance  ought  to  have  been  allowed. 
Brown  v.  State,  65  Ga.  332. 


JARVIS  V.  SHACKLOCK. 

60  Illinois,  378.      [1871.] 

Mr.  Chief  Justice  Lav^rence  delivered  the  opinion  of  the  court : 
We  are  asked  to  reverse  the  judgment  in  this  case,  because  the 
motion  for  a  continuance  and  the  subsequent  motion  for  a  new 
trial  were  both  overruled.  The  continuance  was  asked  on  two 
grounds;  the  absence  of  a  witness  and  the  illness  of  defendant's 
counsel.    As  to  the  first,  it  is  only  necessary  to  say  that  the  affi-  ,^ 


SMITH    V.    CREASOn's   EXECUTORS.  213 

davit  does  not  state  the  defendant  had  no  other  witness  by  whom 
he  could  prove  the  facts  stated  in  his  affidavit  as  completely  as 
by  the  absent  witness.  As  to  the  illness  of  counsel,  it  appears 
that  the  case  was  first  called  on  the  25th  of  November,  and  then 
passed  because  of  the  illness  of  defendant's  counsel;  that  it  stood 
over  until  the  12th  of  December,  when  defendant  was  notified 
by  plaintiff's  counsel  that  the  cause  would  be  called  the  next 
day,  and  the  application  for  continuance  was  then  made. 

Illness  of  counsel  would  certainly  be  a  good  cause  for  contin- 
uance where  the  court  can  see  that  a  fair  trial  is  likely  to  be 
prevented  by  such  illness,  and  the  party  moving  for  a  continuance 
has  shown  no  unreasonable  carelessness.  But  this  suit  is  of  the 
simplest  character.  Its  trial  involved  no  question  of  law,  and 
but  one  of  fact,  to-wit:  whether  certain  property  had  been  sold 
through  the  agency  of  the  plaintiffs.  The  evidence  is  in  a  small 
compass,  and  a  few  minutes'  conversation  between  the  defendant 
and  counsel  would  have  enabled  any  practicing  lawyer  to  try  the 
case  as  well  as  if  he  had  been  engaged  in  it  from  the  beginning. 
The  defendant,  as  appears  by  the  record,  is  himself  a  lawyer, 
and  must  have  perfectly  understood  that  no  preparation  would 
be  necessary  to  try  a  case  of  this  character  for  any  lawyer  com- 
petent to  practice  at  all. 

The  motion  for  a  continuance  was  properly  overruled.^ 


SMITH  V.  CREASON'S  EXECUTORS. 

5  Dana  (Ky.),  298.     [1837.] 

Judge  EwiNG  delivered  the  opinion  of  the  court :  The  only 
question,  which  we  deem  necessary  to  determine  in  this  case,  is, 
shall  a  party  who  has  made  out  good  grounds  for  a  continuance, 
on  account  of  the  absence  of  witnesses,  be  ruled  to  trial  upon  the 
admission  of  his  adversary,  that  his  witnesses  who  are  absent,  if 
present,  would  swear  to  the  facts  which  he  states,  he  expects  to 
prove  by  them ;  or  shall  he  be  required  to  admit  the  fact  proposed 
to  be  proven  by  them? 

1  See  also  Roseorans  v.  Telephone 
Co.,  65  la.  444. 


214  CONTINUANCES.  [ChAP.  III. 

The  common  law  rule,  of  confronting  the  jurors  with  the  wit- 
nesses, in  a  public,  oral,  examination,  has  ever  been  regarded  by 
the  wisest  jurist,  as  a  most  invaluable  rule  in  the  ascertainment 
of  truth. 

By  such  an  examination,  a  party  has  not  only  the  benefit  of 
the  naked  fact  detailed,  but  also  the  benefit  of  the  deportment, 
the  manner,  the  physiognomy,  the  impression,  detail,  and  intelli- 
gent reasons  given  by  his  witnesses,  which  are  calculated  to  force 
conviction  upon  the  triers,  and  greatly  outweigh  the  same  num- 
ber of  witnesses  on  the  other  side.  Of  all  these  he  would  be  de- 
prived, if  compelled  to  go  to  trial  upon  the  naked  admission  that 
his  witnesses  would  swear  to  the  facts  which  he  proposes  to  prove 
by  them.  Such  admission,  if  not  forgotten,  would  make  but  lit- 
tle impression,  amid  a  consistent  and  rational  detail,  of  a  simi- 
lar number  of  witnesses,  deposing,  orally,  to  facts  of  a  counter- 
acting character. 

His  right  to  bring  his  witnesses  before  the  jury,  is  a  legal 
right,  and  which  may  be  of  essential  advantage  to  him,  especially 
in  the  establishment  of  controverted  facts,  and  of  which  he  ought 
not  to  be  deprived.  If  therefore  entitled  to  a  continuance,  in 
such  a  case,  he  ought  not  to  be  deprived  of  it  by  any  admission 
short  of  the  admission  of  the  fact  intended  to  be  proved  by  his 
absent  witnesses. 

We  perceive  no  error  in  the  construction  given  by  the  Circuit 
Court  to  the  writing  sued  on. 

Judgment  affirmed. 


ALDEN  V.  CARPENTER. 
7  Colorado,  87.     [1883.] 

Stone,  J.  Appellee  brought  suit  against  the  appellant,  E.  K. 
Alden,  and  one  A.  L.  Price,  upon  a  promissory  note,  of  which 
the  following  is  a  copy ;     *     *     * 

Defendant  Alden  filed  an  affidavit  for  continuance,  on  the 
ground  of  the  absence  of  a  certain  witness,  by  whom  he  expected 
to  prove  that  said  defendant  Alden  "authorized  said  Price  to  sign 
a  note  for  the  indebtedness  to  plaintiff,  on  the  express  condition 
that  the  said  note  should  contain  a  provision  for  its  renewal 
at  the  option  of  defendants  at  maturity,  and  that  this  provision 


ALDEN   V.   CARPENTER.  215 

was  afterwards  omitted  from  the  note  when  executed  by  said 
Price,  as  aforesaid,  without  said  Alden's  consent."  The  motion 
for  continuance  was  argued  by  counsel  and  taken  under  advise- 
ment by  the  court,  and  afterwards,  when  the  court  was  about 
to  announce  its  decision  granting  the  continuance,  the  plaintiff 
offered  to  admit  that  the  witness,  if  present,  would  swear  to 
what  was  stated  in  the  affidavit  it  was  expected  to  be  proved  by 
him,  whereupon,  against  the  objection  of  defendant  Alden,  the 
court  allowed  the  offer  of  plaintiff  and  denied  the  continuance. 
This  ruling  of  the  court  was  expected  to,  and  is  made  one  of  the 
grounds  of  error,  counsel  for  appellant  objecting  that  the  offer 
of  appellee  was  not  made  in  apt  time.  We  see  on  error  in  this 
ruling  of  the  court.  Such  offer  is  a  privilege  of  the  party  against 
whom  the  continuance  is  sought,  and  the  allowance  of  the  offer, 
as  made,  is  within  the  discretion  of  the  court,  and  we  see  no 
good  reason  why  such  discretion  may  not  be  exercised  as  well 
after  the  court  has  decided  that  the  evidence  is  material,  as 
when  the  motion  is  first  made.  It  certainly  would  be  unreason- 
able to  expect  that  a  party  would  admit  the  assumed  testimony 
while  he  was  at  the  same  time  contesting  the  insufficiency  of  the 
grounds  for  continuance.  It  is  only  when  he  knows  that  the 
continuance  will  otherwise  be  granted  that  such  adverse  party 
has  any  reason  for  admitting  the  supposed  testimony  sought  by 
the  continuance.  The  ruling  of  the  court  below  was  in  accord- 
ance with  the  provisions  of  section  158  of  the  Civil  Code  practice.^ 
Another  point  made  by  counsel  for  defendants  is  that  the 
offer  of  plaintiff  should  have  been  to  admit  the  truth  of  the 
supposed  testimony,  and  not  merely  that  the  absent  witness 
would  swear  to  the  same  if  present.  For  the  same  reason  error 
is  assigned  to  the  ruling  of  the  court  in  allowing  plaintiff,  on  the 
trial,  to  introduce  evidence  contradicting  the  admitted  testimony 
of  the  absent  witness.  There  was  no  error  in  this.  Admitting 
the  testimony  of  an  absent  witness,  in  order  to  avoid  a  con- 
tinuance of  the  case,  is  not  to  be  taken  as  an  admission  of  the 
truth  of  such  testimony;  nor  does  such  admission  preclude  the 
party  admitting  it  from  rebutting  the  same  on  the  trial.  Boggs 
V.  The  M.  N.  Co.  14  Cal.  358 ;  Blakeman  v.  Vallejo,  15  Cal.  639 ; 
O'Neil  V.  N.  Y.  etc.  Co.  3  Nev.  141 ;  State  v.  Geddis,  42  Iowa,  264. 

1  Such  a  provision,  as  applied  to       Process ' '  clause.     Geary  v.  Ry.,  138 
civil  cases,  does  not  violate  the  "Due       Mo.  251. 


216  CONTINUANCES.  [ChAP.  III. 

THOMPSON  V.  THORNTON. 

41  California,  626.    '[1871.] 

By  the  Court,  Wallace,  J. :  This  is  an  action  of  ejectment, 
and  issue  was  joined  by  the  filing  of  the  answer.  The  cause 
came  on  for  trial  on  November  2d,  1870.  The  defendants  on 
that  day  were  present  at  the  court,  in  Stockton,  where  the  action 
was  to  be  tried,  but  their  counsel,  who  resided  in  San  Francisco, 
was  unable  to  attend  the  court,  by  reason  of  the  sickness  of  two 
members  of  his  family — so  extreme  in  its  character  that  the 
attending  physician  forbade  him  to  leave,  he  being  of  opinion 
"that  no  prudent  man  could  think  of  leaving  his  family  for 
any  length  of  time  in  the  condition  they  were  in. ' ' 

On  the  morning  of  the  day  upon  which  the  trial  came  on  the 
defendants,  for  the  first  time,  ascertained  that  their  counsel 
could  not  attend,  and  the  reason  why  he  could  not,  and  at  once, 
upon  receiving  a  telegraphic  dispatch  from  him,  made  applica- 
tion to  the  court  to  continue  the  cause,  after  making  an  ineffectual 
effort  to  obtain  other  counsel,  they  having  no  opportunity  to 
prepare  the  case  for  the  defense.  The  Court  refused  to  continue 
the  case,  even  for  a  short  time,  to  allow  preparation  for  a  defense 
by  new  counsel,  if  any  could  be  found ;  but  compelled  the  defend- 
ants to  proceed,  in  the  absence  of  their  counsel,  under  the  cir- 
cumstances stated.  The  defendants  sweai;  that  they  were  utterly 
unable  to  conduct  the  defense  of  the  action  themselves,  and 
wholly  unable  to  procure  counsel,  for  the  reason  that  no  time 
whatever  was  allowed  for  counsel  to  prepare  for  trial.  The 
defendants  also  swear  that  they  have  fully  and  fairly  stated  the 
facts  of  the  case  to  their  counsel,  and  that  he  has  advised  them 
that  they  have  a  defense  upon  the  merits.  The  counsel  also 
swears  that  he  is,  and  for  several  years  has  been,  acquainted  with 
all  the  facts  of  the  case ;  that  he  has  been  the  counsel  for  one  of 
the  defendants  for  about  six  years ;  and  that  he  believes  that  the 
defendants  have  a  substantial  defense  upon  the  merits  of  the 
action,  and  that  he  has  so  advised  them.  The  defendants  being, 
under  these  circumstances,  compelled  to  go  to  trial,  judgment 
was  rendered  against  them ;  and  they  thereupon  moved  for  a  new 
trial,  upon  the  ground  of  accident  and  surprise ;  and  their  motion 
was  supported  by  affidavits  showing  the  foregoing  facts  in  sub- 
stance.    The  affidavits  were  not  contradicted;  but  the  motion 


SOLOMON    V.    HOWARD.  217 

was,  nevertheless,  denied,  and  the  defendants  brought  this  appeal 
from  the  order  denying  the  motion. 

I  think  that  the  Court  erred  in  denying  the  motion  for  a  new 
trial.  The  affidavits  show  that  the  defendants  have  a  meritorious 
defense  to  the  action.  They  were  not  in  default  in  the  slightest 
degree.  There  was  no  lack  of  diligence  on  their  part.  They 
were  ready  for  trial,  and  ili  attendance  upon  the  Court  with  their 
witnesses.  Everything  that  they  could  do  of  themselves,  in  the 
way  of  preparation,  had  been  done ;  and  but  for  the  sickness  in 
the  family  of  their  counsel  they  would  have  been  ready  to  pro- 
ceed to  trial ;  and  even  when  it  was  ascertained  that  he  could 
not,  for  that  reason,  attend  upon  the  Court,  they  only  desired 
time  for  some  other  counsel  to  familiarize  himself  with  the  de- 
fense.    This,  at  least,  should  have  been  allowed  them. 

The  order  denying  a  new  trial  is  reversed,  and  the  cause  re- 
manded; the  remittitur  to  issue  forthwith. 


SOLOMON  v.  HOWARD. 
12  Common  Bench,  463.     [1852.] 

This  was  an  action  upon  a  bill  of  exchange  for  £295  17s., 
drawn  by  the  plaintiff  upon  and  accepted  by  the  defendant, 
dated  the  12th  of  September,  1851,  and  payable  six  months  after 
date. 

The  bill  in  question  was  drawn  for  the  price  of  certain  goods 
which  had  been  sold  by  the  plaintiff  to  the  defendant,  who  was 
a  master-mariner  trading  between  Liverpool  and  Shanghae,  in 
China,  subject  to  the  following  agreement,  which  was  written  at 
the  foot  of  the  invoice:  "Any  of  the  above  goods  that  cannot 
be  sold  at  the  invoice  price,  we  (the  plaintiff)  guarantee  to  take 
back  again.    I.  Solomon." 

The  writ  of  summons  was  served  upon  the  defendant  on  the 
24th  of  March  last.  After  three  summonses  for  time  to  plead, 
upon  the  usual  terms,  the  defendant,  on  the  22nd  of  April, 
pleaded  non  acc.epit ;  and  afterwards  obtained  leave  to  amend  by 
paying  £52  into  court,  and  pleading  a  plea  of  partial  failure 
of  consideration  as  to  the  rest. 

The  plaintiff  [defendant?]  sailed  for  Shanghae  on  the  8th  of 


218  CONTINUANCES.  [ChAP.  III. 

April ;  and,  the  cause  standing  for  trial  at  the  sittings  in  London 
after  this  term, 

John  Henderson  moved  for  a  rule  to  show  cause  why  the 
trial  should  not  be  postponed  until  his  return,  which  was  ex- 
pected to  be  in  the  month  of  February  next.  The  affidavits  upon 
which  he  moved  gave  a  detailed  account  of  the  dealings  between 
the  plaintiff  and  the  defendant,  and  stated  that  the  defendant's 
evidence  was  essential  to  make  out  his  defense,  and  that,  beyond 
the  amount  paid  into  court,  he  had  a  good  defense  to  the  action 
upon  the  merits.  He  stated  that  the  parties  had  been  before 
Talfoubd,  J.,  at  chambers,  for  a  commission  to  take  the  examina- 
tion of  the  defendant  at  Shanghae,  when  that  learned  judge 
doubted  whether  an  examination  of  a  party  under  a  commission 
was  warranted  by  the  late  statute.  (Jervis,  C,  J.  I  do  not  see 
why  we  should  go  out  of  the  way  to  defeat  the  act,  by  giving 
such  undue  weight  to  the  words  ' '  on  trial. ' '  The  clause  speaks  of 
' '  depositions. ' '  These  must  be  taken  before  the  trial.  It  is  not 
necessary,  however,  to  decide  the  point  here.)  This  application 
rests  upon  the  undoubted  power  of  the  court  to  postpone  a  trial, 
where  it  appears  to  be  essential  to  the  ends  of  justice  that  it 
should  be  done.  (Jervis,  C.  J.  Your  only  ground  for  the  mo- 
tion is  that  it  did  not  suit  the  convenience  of  the  defendant  to 
wait  in  England  till  after  issue  joined.)  He  was  compelled  to 
go,  or  give  up  his  command.  (Jervis,  C.  J.  How  would  it  have 
been,  before  the  late  act,  if  the  defendant  had  taken  his  witnesses 
abroad  with  him  ?)  No  doubt  in  that  case  he  would  be  compelled 
to  have  recourse  to  a  commission. 

Jervis,  C.  J.  I  think  there  ought  to  be  no  rule  in  this  case. 
The  defendant  has  brought  the  difficulty  upon  himself,  by  with- 
drawing before  issue  joined.    He  must  take  the  consequences. 

Cresswell,  J.  It  would  be  scarcely  fair  to  the  plaintiff  to 
allow  a  defendant  who  is  under  terms  to  go  to  trial  at  a  particular 
time  to  obtain  a  postponement  of  the  trial  on  grounds  which 
existed  and  were  not  disclosed  when  those  terms  were  entered 
into. 

Rule  refused.^ 

1  See  Eose  v.  Stuyvesant,  8  John-       a  defendant  was  kept  away  by  sud- 
son,  426,  holding  it  an  abuse  of  dis-       den  sickness  in  his  family, 
cretion  to  refuse  a  continuance  where 


II 


COVELL   V.    MARKS.  219 

COVELL  V.  MARKS. 

2  Illinois,  525.     [1838.] 

Wilson,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

The  plaintiff  in  this  action  declared  upon  a  promissory  note 
for  four  hundred  dollars.  Upon  the  calling  of  the  cause, 
the  plaintiff  asked  and  obtained  leave  to  amend  his  declara- 
tion, which  he  did  instanter  by  adding  to  the  description  of  the 
note,  the  words  "with  twelve  per  cent,  interest  from  the  date 
until  paid."  The  defendants  thereupon  moved  the  court  for  a 
continuance  of  the  cause,  which  was  refused,  and  judgment  ren- 
dered against  the  defendants.  The  refusal  of  the  court  to  con- 
tinue the  cause,  and  the  rendition  of  the  judgment  are  assigned 
for  error.  The  rule  is,  that  where  the  amendment  to  the  declara- 
tion is  a  substantive  one,  it  entitles  the  defendant  to  a  contin- 
uance. The  amendment  in  this  case  is  clearly  of  this  character. 
It  made  the  note  a  different  one  from  that  at  first  declared  on,  by 
increasing  the  defendants'  liability  to  the  extent  of  the  interest 
that  might  be  due  on  the  note.  This  in  effect  made  the  amended 
declaration  a  new  one,  which  the  defendants  could  not  be  called 
on  to  answer  without  ten  days'  notice  preceding  the  commence- 
ment of  the  term  of  the  court. 

The  copy  of  the  note  upon  the  back  of  the  declaration,  was  no 
notice  to  the  defendants  of  the  one  declared  on.  They  were  dif- 
ferent not  only  in  terms,  but  in  their  legal  effect;  and  the  one 
copied  could  not  be  given  in  evidence  under  the  declaration. 

The  judgment  of  the  Court  below  is  reversed  with  costs,  and 
the  cause  remanded. 

Judgment  reversed. 


COLHOUN  V.  CRAWFORD. 

50  Missouri,  458.     [1872.] 

Bliss,  Judge,  delivered  the  opinion  of  the  court. 

Suit  was  brought  upon  two  promissory  notes,  and  in  the  orig- 
inal petition  the  plaintiffs  failed  to  allege  their  partnership  and 
that  of  defendants.     Defendants  demurred  and  plaintiffs  had 


220  CONTINUANCES.  [ChAP.  III. 

leave  to  amend,  which  was  at  once  done  by  inserting  the  omitted 
allegations  and  filing  the  petitions  anew.  Defendants  then  ap- 
plied for  a  change  of  venue  from  the  Common  Pleas  to  the  Circuit 
Court,  and  obtained  leave  in  said  court  to  answer,  but  not  an- 
swering, interposed  several  motions  which  were  overruled,  and 
the  court  permitted  the  plaintiffs  to  file  an  amended  petition 
instanter,  containing  in  the  body  of  it  the  interlined  allegations. 
Defendants  then  moved  for  a  continuance  of  the  cause  because 
of  such  amendments,  but  the  court  overruled  the  motion,  and 
no  answer  being  filed,  gave  judgment  by  default. 

The  chief  error  assigned  is  the  refusal  of  the  court  to  grant 
a  continuance.  Some  eight  months  had  elapsed  since  the  plain- 
tiffs were  entitled,  under  the  statute,  to  a  judgment  in  the  Com- 
mon Pleas.  No  defense  upon  the  merits  had  been  set  up,  and 
every  step  seems  to  have  been  for  delay  merely.  In  consequence 
of  the  omission  of  a  formal  allegation  it  had  become  necessary 
for  plaintiffs  to  amend  their  petition,  and  the  amendment  was 
irregularly  made.  Taking  advantage  of  this  irregularity,  after 
having  removed  the  cause  to  another  court,  the  action  of  defend- 
ants made  it  necessary  for  the  plaintiffs  to  file  an  amended  peti- 
tion ;  but  this  of  itself  did  not  entitle  them  to  a  continuance.  The 
statute  (Wag.  Stat.  1040,  section  10)  provides  that  "where  a 
party  shall  amend  any  pleading  or  proceeding,  and  the  court  shall 
be  satisfied  by  affidavits  or  otherwise  that  the  opposite  party 
could  not  be  ready  for  trial  in  consequence  thereof,  a  continuance 
may  be  granted  to  some  day  in  the  same  term,  or  to  another  term 
of  the  court."  Defendants  do  not  pretend  to  bring  themselves 
within  this  section ;  do  not  allege  that  they  could  not  be  ready 
for  trial  in  consequence  of  the  amendments ;  do  not  even  put  the 
allegations  in  issue,  and  had  no  shadow  of  claim  to  a  continuance. 
Not  only  should  the  court  be  satisfied  that  the  party  could  not 
be  ready  for  trial,  and  that  his  inability  arises  from  the  amend- 
ment, which  implies  that  he  wishes  to  put  in  issue  the  new  facts 
embraced  in  such  amendment,  but  it  should  also  appear  that  he 
has  a  meritorious  defense  to  the  claim  shown  by  the  new  matter 
as  well  as  by  the  original  pleading. 

Counsel  rely  upon  a  rule  of  the  Circuit  Court  which  provides 
that  every  material  amendment  after  answer  to  the  pleading 
amended,  is  cause  for  continuance.  This  rule  stretches  the 
statute,  and,  so  far  as  it  contradicts  or  goes  beyond  it,  should 
not  be  enforced.    But,  even  if  valid,  the  defendants  do  not  bring 


COLHOUN   V,    CRAWFORD.  221 

themselves  withiu  it,  for  they  have  never  answered.  The  term 
"answer,"  to  make  it  at  all  consistent  with  the  statute,  must 
mean  an  answer  to  the  merits,  and  such  answer  has  never  been 

made. 

This  appeal  is  so  clearly  made  to  enable  the  defendants  to 
get  further  time  upon  their  debt,  that  the  plaintiffs  are  entitled 
to  an  affirmance  and  to  the  ten  per  cent,  damages  claimed  by 
them.    The  other  judges  concur. 


CHAPTER  IV. 
CONDUCT    OF   THE   TRIAL. 

Section  1.    Selection  op  the  Jury. 

(a)   Challenges  to  the  Array. 

1.  Tidd's  Practice,  2  Am.  Ed.  715. 

The  first  process  for  convening  the  jury  is  a  venire  facias  which 
is  a  judicial  writ,  commanding  the  sheriff,  or  other  officer  to 
whom  it  is  directed,  to  cause  to  come  before  the  king  at  West- 
minster (by  bill,  or  by  original  wheresoever,  etc.)  on  a  certain 
day  therein  mentioned,  twelve  free  and  lawful  men  of  the  body 
of  the  county,  each  of  whom  has  ten  pounds  a  year  of  lands, 
tenements,  or  rents,  at  the  least,  by  whom  the  truth  of  the  matter 
may  be  better  known,  and  who  are  in  no  wise  of  kin  either  to 
the  plaintiff  or  to  the  defendant,  to  make  a  jury  of  the  country 
between  the  parties  in  the  action,  because  as  well  the  plaintiff 
as  the  defendant,  between  whom  the  matter  in  variance  is,  have 
put  themselves  upon  that  jury;  and  that  he  return  the  names 
of  the  jurors,  etc.^ 


CHAM  V.  MATTHEW. 

Crake,  Elizabeth,  581.     [1597.] 

Trespass.  Upon  the  case,  the  parties  pleaded  to  issue.  The 
plaintiff  for  his  expedition  of  trial  surmised  that  he  was  servant 
to  the  Sheriff  of  Cornwall,  where  the  action  was  brought  and 
triable,  and  prayed  a  venire  facias  to  the  coroners ;  and  the  de- 
fendant non  dedixit;  whereupon  process  was  awarded  to  the 
coroners.    And  after  trial  and  verdict  for  the  plaintiff,  Glenville 

1  Under  this  practice  the  jurors  wards  a  writ  of  distringas  issued  to 
were  not  expected  to  appear  upon  enforce  their  attendance.  Tidd's 
the  return  of  the  venire,  and  after-       Practice,  718. 

222 


Sec.  1.]  VICARS  v.  langham.  223 

moved  that  this  process  was  mis-awarded  and  a  mis-trial;  for 
process  ought  not  to  be  awarded  to  the  coroners  but  where  the 
challenge  is  principal ;  and  here  to  say,  that  he  was  servant  to  the 
sheriff  is  no  principal  challenge,  as  21  Edw.  4.  pi.  67.  is,  but 
only  to  the  favor.  Wherefore,  etc.  The  Court  held,  forasmuch 
as  if  the  sheriff  had  returned  this  panel,  it  had  been  a  good 
cause  to  quash  the  array  for  favor,  that  the  plaintiff  to  avoid 
that  delay,  might  well  show  it,  and  have  process  to  the  coroners ; 
and  so  much  the  rather,  this  being  a  judicial  writ,  and  not  orig- 
inal, as  Plow.  74.  Wimbishe's  case  is.  And  the  clerks  said  there 
were  many  precedents  accordingly.  Wherefore  it  was  adjudged 
for  the  plaintiff. 


VICARS  V.  LANGHAM. 

Eobart,  235.     [1618.] 

A  writ  of  error  was  brought  in  the  Exchequer  Chamber,  upon 
a  judgment  given  in  Exchequer  between  Vicars  and  Langham, 
and  the  error  assigned  was,  that  the  Sheriffs  of  London  having 
returned  a  jury,  and  they  being  called,  and  some  not  appearing, 
the  defendant  ( ?)  prayed  a  tales;  and  after  the  jury  made  full  by 
tales,  then  the  plaintiff  challenged  the  whole  panel  by  exception 
to  the  sheriffs ;  whereupon  the  jury  was  quashed,  and  a  new  jury 
impaneled  by  the  coroners ;  by  which  the  cause  was  tried. 

Now  the  exception  was,  that  the  paintiff  having  prayed  a  tales 
to  the  sheriffs  and  obtained  it,  was  estopped  to  challenge  the 
panel  for  exception  to  the  sheriffs. 

But  it  was  resolved  that  there  could  be  no  challenge  neither 
to  the  panel,  nor  to  the  poll,  till  first  there  were  a  full  jury;  so 
that  the  jury  not  appearing  full,  there  was  a  necessity  to  have 
a  tales,  or  else  the  challenge  could  not  have  been  taken;  and  so 
the  cause  would  have  remained  pro  defectu  juraiorv/m,  if  that 
the  plaintiff  had  not  prayed  it,  for  the  defendant  would  not,  and 
so  the  judgment  was  affirmed. 

And  note,  that  in  this  case  there  were  none  sworn  before  the 
challenge,  but  only  impanelled.  But  if  the  principal  panel  do 
once  appear  full,  then  the  challenge  must  be  taken  to  the  panel 
before  any  be  sworn,  or  else  it  comes  too  late. 


224  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

Note  that  where  the  plaintiff  sues  his  ven.  fac.  to  the  sheriff, 
he  is  not  estopped  thereby,  to  challenge  the  panel  for  kindred 
or  other  cause  that  was  before  the  ven.  fac.  And  though  a  juror 
may  be  challenged  for  a  cause  happened  since  he  was  sworn,  yet 
the  panel  cannot  be  so ;  for  no  ill  affection  of  the  sheriff,  arising 
since  the  jury  sworn,  can  make  the  jury  suspected,  that  was  im- 
panelled before. 


REX  V.  JOHNSON. 

2  Strange,  1000.     [1735.] 

The  defendants  in  an  information  in  imtura  de  quo  warranto 
obtained  the  common  rule  for  a  special  jury,  which  was  drawn 
up  as  usual,  for  the  sheriff  to  attend  with  the  freeholders  book, 
and  that  he  should  return  the  twenty-four  struck  by  the  master. 
The  prosecutor  took  out  the  venire  to  the  sheriff  of  Cheshire. 
And  the  defendant  challenged  the  array,  on  account  of  an  interest 
the  sheriff  had,  as  being  a  freeman  of  Chester,  whose  rights  were 
to  be  tried.  And  upon  arguing  this  challenge  before  the  Chester 
Judges,  viz.,  ]\Ir.  Verney  and  Mr.  Jessop,  they  were  of  opinion 
to  allow  the  challenge ;  though  it  was  much  insisted  on,  that  since 
the  late  act  the  sheriff*  had  no  influence,  he  being  only  to  return 
the  list  brought  him  as  struck ;  but  the  right  of  challenging  not 
being  taken  away,  nor  his  power  of  marshaling  the  panel  and 
putting  which  he  pleased  first,  it  was  determined  to  be  a  good 
challenge,  and  the  array  was  quashed,  ^ 

iBaylis  v.  Lucas,  1  Cowper,  112:  three  of  the  jury  were  his  own  rela- 
"Upon  a  rule  to  show  cause  why  tions.  The  Court  said,  that  every 
the  writ  of  inquiry  executed  in  this  trial  ought  to  be  fair  and  indiffer- 
case  should  not  be  set  aside,  excep-  ent:  and,  therefore,  ordered  the  rule 
tion  was  taken  that  the  jury  were  for  a  new  trial  to  be  made  absolute, 
returned  by  the  attorney  for  the  Mr.  Justice  Ashhurst. — If  the  un- 
plaintiff.  Mr.  Justice  Aston. — The  der-sheriff  is  attorney  in  the  cause 
rule  must  be  made  absolute.  Upon  and  returns  the  jury,  no  doubt  it  is 
a  motion  for  a  new  trial  in  a  cause  a  good  cause  of  challenge.  Per  Cur. 
from  the  Oxford  circuit  in  the  year  Let  the  rule  be  made  absolute." 
1756,  it  was  objected,  that  Penoyer  For  an  example  of  misconduct  by 
Watkins,  who  was  under-sheriff,  was  a  sheriff  's  bailiff,  see  Rex  v.  Whit- 
attorney  for  the  plaintiff,  and  that  taker,  2  Cowper,  752. 


II 


Sec.  1.]  MONTGOMERY   V.    STATE.  225 

MONTGOMERY  v.  STATE. 

55  Florida,  97.    [1908.] 

Whitfield,  J.  (after  stating  the  facts).  Having  been  con- 
victed of  embezzlement,  the  plaintiff  in  error  insists  here  on  writ 
of  error  that  the  trial  court  erred  in  overruling  his  challenges  to 
the  array  of  jurors  made  on  the  ground  that  there  was  illegal 

discrimination  in  the  selection  and  summoning  of  the  jurors. 

*     *     * 

The  constitutional  guaranty  of  equal  protection  of  the  laws 
does  not  give  to  any  person  a  right  to  a  jury  composed  in  whole 
or  in  part  of  his  own  or  of  any  particular  race ;  but  every  person 
being  tried  in  a  court  of  justice  is  entitled  to  have  a  jury  selected 
and  summoned  without  illegal  discrimination  of  any  character. 
A  large  discretion  is  necessarily  allowed  the  ofBcers  charged  with 
the  responsible  duty  of  selecting  jurors.  This  discretion  should  be 
carefully  exercised  so  as  to  aid  in  the  proper  administration  of 
the  law  by  securing  the  best  juries  possible  without  illegal  dis- 
crimination against  any  qualified  citizen  of  the  state.  Illegal 
discrimination  in  selecting  persons  to  serve  as  jurors  affects  the 
validity  of  the  panel  or  venire  as  an  entirety  without  reference 
to  the  impartiality  of  individual  jurors  on  the  panel.  In  the  eyes 
of  the  law  all  persons  of  all  races  are  regarded  alike,  and  no 
person  has  any  right  to  insist  that  a  person  of  his  race  or  color 
shall  be  on  the  jury  by  which  he  is  tried  when  charged  with 
crime,  or  when  he  is  otherwise  a  party  to  an  action  or  proceeding. 
But  every  person  has  a  right  to  insist  that  officers  of  the  law  in 
selecting  lists  of  names  of  persons  to  compose  the  juries  in  the 
courts  shall  not  in  such  selection  discriminate  against  any  citizen 
subject  to  jury  duty  because  of  his  race,  color  or  previous  con- 
dition of  servitude,  and  if  such  officers  do  so  discriminate  they 
violate  the  constitution  of  the  United  States  and  the  entire  list 
of  jurors  so  selected  is  vitiated  and  illegal.  Montgomery  v.  State, 
53  Fla.  115,  42  South  Rep.  894 ;  Virginia  v.  Rives,  100  U.  S.  313, 
323 ;  State  v.  Brown,  119  Mo.  527,  24  S.  W.  Rep.  1027 ;  25  S.  W. 
Rep.  200:  Lewis  v.  State,  Miss.  45  South.  Rep.  360;  State  v. 
Casey,  44  La.  Ann.  969,  11  South  Rep.  583;  Bullock  v.  State, 
65  N.  J.  L.  557,  47  Atl.  Rep.  62,  S.  C.  86  Am.  St.  Rep.  668; 
Lawrence  v.  Commonwealth,  81  V.,  484 ;  State  v.  Sloan,  97  N.  C. 
499,  2  S.  E.  Rep.  666. 

H.  T.  p.— 15 


226  CONDUCT   OF  THE  TRIAL.  [ChAP.  IV. 

On  a  former  writ  of  error  in  this  case  (53  Fla.  115,  42  South. 
Rep.  894),  it  was  held  that  an  allegation  that  the  ''refusal  of  the 
sheriff  to  select  any  men  of  the  African  race  to  serve  on  the  jury 
is  on  account  of  their  race,  color  and  previous  condition  of  servi- 
tude, "  is  a  sufficient  charge  of  discrimination  to  entitle  defendant 
to  prove  it.^  This  is  the  law  of  the  case  and  is  applicable  to  both 
challenges  now  before  the  court. 

Where  testimony  is  admitted  without  objection  in  a  judicial 
proceeding  it  is  treated  as  received  by  consent.  When  so  ad- 
mitted the  testimony,  if  not  illegal,  should  be  given  all  the 
probative  force  that  its  ordinary  meaning  and  effect  will  afford. 
The  testimony  in  support  of  the  challenges  is  not  full  and  clear ; 
but  it  was  admitted  without  objection  and  no  testimony  was 
offered  in  rebuttal.  Under  these  circumstances  the  evidence 
adduced  by  the  defendant  in  support  of  his  challenges  to  the 
jurors  should  be  given  all  the  probative  force  and  effect  that  the 
meaning  of  the  testimony  naturally  and  ordinarily  affords  to  the 
mind  without  technical  requirements  or  limitations.  There  is 
uncontroverted  testimony  that  the  people  of  one  race  and  color 
are  numerically  in  the  majority  in  Duval  county  where  the  trial 
was  had,  and  that  about  two-thirds  of  the  men  of  that  race  are 
of  fair  character,  sound  judgment  and  intelligence,  and  fully 
qualified  for  jury  duty;  but  that  in  the  list  of  several  hundred 
names  drawn  for  duty,  not  more  than  half  a  dozen,  if  any,  names 
of  men  of  that  race  are  found ;  and  also  that  colored  men  were 
drawn  on  the  juries  when  N.  B.  Broward  was  sheriff,  but  it  has 
been  a  long  time  since  men  of  that  race  have  served  on  the  juiy 
in  court.  A  portion  of  this  testimony  may  be  merely  opinions 
or  conclusions,  but  it  was  admitted  without  objection  and  was 
not  impeached  or  contradicted  in  any  way.  If  testimony  that  is 
not  strictly  admissible  as  distinguished  from  being  illegal  is 
admitted  without  objection,  and  it  is  not  controverted  in  any 
way,  the  courts  are  not  required  to  give  such  testimony  a  narrow 
or  restrictive  probative  force  and  effect. 

While  the  presumption  is  that  the  officers  have  legally  dis- 
charged their  duty  in  selecting  and  summoning  the  jurors  under 
statutes  that  do  not  authorize  any  illegal  discrimination,  yet  this 
ia  but  a  presumption  that  may  be  overcome  by  evidence  to  the 

1  The  motion  to  quash,  though  the  facts  therein  charged.  Martin  v. 
verified,  is  not  sufficient  evidence  of       Texas,  200  U.  S.  316. 


Sec.  1.]  CLINTON  v.  englebrecht,  227 

contrary.  There  is  uncontroverted  testimony  that  the  people  of 
one  race  and  color  are  largely  in  the  majority  of  the  population 
in  the  county  where  the  court  was  held ;  that  about  two-thirds  of 
the  men  of  that  race  are  fully  qualified  for  jury  duty;  that  a 
list  of  several  hundred  names  of  men  selected  for  jury  duty  for 
the  year  does  not  contain  the  names  of  a  half  dozen,  if  any,  men 
of  that  race;  that  men  of  that  race  have  served  on  the  jury  in 
the  past  in  the  county ;  and  that  the  people  of  that  race  are  en- 
gaged in  pursuits  that  should  improve  their  intellectual  and 
moral  condition.  As  there  has  been  no  change  in  the  law  that 
would  exclude  men  of  any  race  from  jury  duty,  this  evidence 
tended  to  show  a  discrimination  on  account  of  race  or  color ;  and 
such  uncontroverted  evidence  is  at  least  sufficient  to  require  some 
proof  that,  notwithstanding  the  facts  in  evidence,  there  was  no 
discrimination  on  account  of  race  or  color  against  any  person 
of  any  race  in  the  selection  and  summoning  of  the  jurors.  See 
Hubbard  v.  State,  43  Tex.  Crim.  Rep.  564,  67  S.  W.  Rep.  413 ; 
Whitney  v.  State,  43  Tex.  Crim.  Rep.  197,  63  S.  W.  Rep.  879 ; 
Eastling  v.  State,  69  Ark.  189,  62  S.  W.  Rep.  584 ;  State  v.  Mur- 
ray, 47  La.  Ann.  1424,  17  South.  Rep.  832 ;  Haggard  v.  Common- 
wealth, 78  Ky.  366 ;  Lewis  v.  State,  Miss.  45  South  Rep.  360. 

As  there  was  uncontroverted  evidence  tending  to  show  dis- 
crimination against  persons  on  account  of  race  or  color  in  the 
selection  of  jurors  whose  names  were  on  the  panels,  sufficient  to 
overcome  the  presumption  in  favor  of  the  legality  of  the  acts  of 
the  officers,  the  challenges  interposed  should  have  been  sustained. 
See  Smith  v.  State,  42  Tex.  Cr.  Rep.  220,  58  S.  W.  Rep.  97; 
Kipper  V.  State,  42  Tex.  Cr.  Rep.  613,  62  S.  W.  Rep.  420 ;  AVhit- 
ney  v.  State,  42  Tex.  Cr.  Rep.  283,  59  S.  W.  Rep.  895. 

The  judgment  is  reversed  and  the  cause  is  remanded  for 
further  proceedings  according  to  law. 


CLINTON  V.  ENGLEBRECHT. 

13  Wallace  (U.  S.),  434.     [1871.] 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 
The   principal   question    for   consideration   in    this   case   was 
raised  by  the  challenge  of  the  defendants  to  the  array  of  the 


228  CONDUCT   OF   THE   TRIAL.  [  ChAP.  IV. 

jury  in  the   Third  District   Court  of  the   Territory   of  Utah. 

The  act  of  the  Territorial  legislature,  passed  in  1859,  and  in 
force  when  the  jury  in  this  cause  was  summoned,  required  that 
"the  county  court"  in  each  county  should  make  out  from  the 
assessment  rolls,  a  list  of  fifty  men  qualified  to  serve  as  jurors; 
and  that  thirty  days  before  the  session  of  the  District  Court, 
"the  clerk  of  said  court"  should  issue  a  writ  to  the  Territorial 
marshal  or  any  of  his  deputies,  requiring  him  to  summon  twenty- 
four  eligible  men  to  serve  as  petit  jurors.  These  men  were  to 
be  taken  by  lot,  in  the  mode  pointed  out  by  the  statute,  from  the 
lists  previously  made  by  the  clerks  of  the  county  courts,  and 
their  names  were  to  be  returned  by  the  marshal  to  the  clerk 
of  the  District  Court.  Provision  was  further  made  for  the  draw- 
ing of  the  trial  panel  from  this  final  list,  and  for  its  commple- 
tion  by  a  new  drawing  or  summons  in  case  of  non-attendance 
or  excuse  from  service  upon  challenge,  or  for  other  reason. 

For  the  trial  of  the  cause  the  record  showed  that  the  court 
originally  directed  a  venire  to  be  issued  in  conformity  with  this 
law,  and  that  a  venire  was  issued  accordingly,  but  not  served 
or  returned.  The  record  also  showed  that  under  an  order  sub- 
sequently made,  an  open  venire  was  issued  to  the  Federal  mar- 
shal, which  was  served  and  returned  with  a  panel  of  eighteen 
petit  jurors  annexed;  the  court,  in  making  this  order,  acting 
apparently  on  the  theory  that  it  was  a  court  of  the  United  States, 
and  to  be  governed  in  the  selection  of  jurors  by  the  acts  of  Con- 
gress. The  jurors  thus  summoned  were  summoned  from  the 
body  of  the  county,  at  the  discretion  of  the  marshal.  Twelve 
jurors  of  this  panel  were  placed  in  the  jury-box,  and  the  defend- 
ants challenged  the  array  on  the  ground  that  the  jurors  had  not 
been  selected  or  summoned  in  conformity  with  the  laws  of  the 
Territory  and  with  the  original  order  of  the  court.  This  chal- 
lenge was  overruled.  Exception  was  taken,  and  the  cause  pro- 
ceeded. Both  parties  challenged  for  cause.  Each  of  the  defend- 
ants claimed  six  peremptory  challenges.     *     *     * 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

It  is  plain  that  the  jury  was  not  selected  or  summoned  in  pur- 
suance of  the  statute  of  the  Territory.  That  statute  was,  on  the 
contrary,  wholly  and  purposely  disregarded,  and  the  control- 
ling question  raised  by  the  challenge  to  the  array  is,  whether 
the  law  of  the  Territorial  legislature,  prescribing  the  mode  of 


/ 


Sec.  1.]  CLINTON  v.  englebrecht.  229 

obtaining  panels  of  grand  and  petit  jurors,  is  obligatory  upon 
the  District  Courts  of  the  Territory. 

It  was  insisted  in  argument  that  the  challenge  to  the  array 
was  waived  by  the  defendants  through  the  exercise  of  their 
right  to  challenge  peremptorily  and  for  cause;  and  we  were 
referred  to  the  judgment  of  the  Supreme  Court  of  New  York, 
in  the  case  of  The  People  v.  McKay  (18  Johnson,  217)  as  an 
authority  for  this  proposition.  But  that  case  appears  to  be  an 
authority  for  the  opposite  conclusion.  "We  are  not  of  opin- 
ion," says  the  court,  "that  the  prisoner's  peremptory  challenge 
of  jurors  was  a  waiver  of  his  right  to  object  now  to  the  want 
of  a  venire."  In  that  case  there  had  been  no  venire,  but  the 
jury  had  been  summoned  in  a  mode  not  warranted  by  law.  In 
the  ease  before  us  there  was  a  venire,  but  if  it  was  not  author- 
ized by  law  it  was  a  nullity;  and  we  are  not  prepared  to  say 
that  the  efforts  of  the  defendants  to  secure  as  far  as  they  could, 
by  peremptory  challenges  and  challenges  for  cause,  a  fair  trial 
of  their  case,  waived  an  inherent  and  fatal  objection  to  the  entire 
panel. 

We  are,  therefore,  obliged  to  consider  the  question  whether 
the  District  Court,  in  the  selection  and  summoning  of  jurors, 
was  bound  to  conform  to  the  law  of  tlie  Territory.     *     *     * 

The  process  for  summoning  jurors  to  attend  in  such  cases  may 
be  a  process  for  exercising  the  jurisdiction  of  the  Territorial 
courts  when  acting,  in  such  cases,  as  Circuit  and  District  Courts 
of  the  United  States;  but  the  making  up  of  the  lists  and  all 
matters  connected  with  the  designation  of  jurors  are  subject  to 
the  regulation  of  Territorial  law.  And  this  is  especially  true  in 
cases  arising,  not  under  any  act  of  Congress,  but  exclusively, 
like  the  case  in  the  record,  under  the  laws  of  the  Territory. 

There  is  nothing  in  this  opinion  inconsistent  with  the  cases 
of  Orchard  v.  Hughes  (1  Wallace,  73),  or  of  Hunt  v.  Palao 
(4  Howard,  589),  properly  understood.  The  first  of  these  cases 
Avent  upon  the  ground  that  the  chancery  jurisdiction  conferred 
upon  the  courts  of  the  Territories  by  the  organic  act  was  be- 
yond the  reach  of  Territorial  legislation;  and  the  second,  in 
which  the  Territorial  Court  of  Appeals  was  called  a  court  of 
the  United  States,  was  only  intended  to  distinguish  it  from  a 
State  court. 

Upon  the  whole,  we  are  of  opinion  that  the  jury  in  this  case 
was  not  selected  and  summoned  in  conformity  with  law,  and 


230  CONDUCT   OF  THE   TRIAL.  [ChAP.  IV. 

that  the  challenge  to  the  array  should  have  been  allowed.  ^ 
This  opinion  makes  it  unnecessary  to  consider  the  other  ques- 
tions in  the  case. 

Judgment  reversed. 


RHODES  V.  SOUTHERN  RY.  CO. 

68  South  Carolina,  494.     [1903.] 

Mr.  Justice  Gary.     *     *     * 

The  second  exception  is  as  follows:  "Because  it  is  respect- 
fully submitted,  that  his  Honor  erred  in  refusing  to  quash  the 
panel  of  jurors  upon  the  following  grounds:  (a)  That  the  jury 
list  of  'qualified  electors'  was  not  prepared  by  the  county  auditor, 
the  county  treasurer,  and  the  clerk  of  the  Court  of  Common 
Pleas,  in  Barnwell  County,  where  said  case  was  tried,  as  is  re- 
quired by  law,  but  by  the  board  of  county  commissioners  and 
the  clerk  of  the  board  of  county  commissioners,  and  that  sub- 
sequent adoption  and  ratification  of  the  acts  of  the  said  board 
of  county  commissioners  and  clerk,  by  the  said  eounty  auditor, 
county  treasurer,  and  clerk  of  the  Court  of  Common  Pleas,  did 
not  cure  such  illegal  preparation  of  said  list,  (b)  That  the 
jury  list  required  by  law  to  be  deposited  with  the  ballots  in  the 
jury  box,  was  not  so  deposited,  but  was  found  outside  of  the 
said  box  unenclosed,  in  the  office  of  the  clerk  of  said  Court. 
(c)  That  what  purported  to  be  said  jury  list,  when  found,  did 
not  consist  of  one  list  but  of  two  jury  lists,  (d)  That  the  said 
jury  lists  were  made  out  from  the  list  of  taxpayers  and  not 
from  the  qualified  electors,  as  required  by  law." 

We  will  first  consider  subdivision  "a."  The  plaintiff  intro- 
duced in  evidence  the  affidavit  of  the  county  auditor,  county 
treasurer  and  clerk  of  the  Court,  in  which  they  stated.  "That 
each  of  said  commissioners  being  exceedingly  busy  with  the 
manifold  duties  in  their  respective  offices,  at  their  own  expense, 
employed  R.  C.  Roberts,  Jr.,  the  clerk  of  the  county  supervisor, 
to  make  a  list  of  the  qualified  electors  of  said  county,  under  the 

1  And  so  in  Lincoln  v.  Stowell,  73  not  be  made  after  challenge  for 
111.  246.  cause. 

But  a  challenge  to  the  array  can 


Sec.  1.]  RHODES  v,  southern  ry.  CO.  231 

provisions  of  the  Constitution,  between  the  ages  of  twenty-one 
and  sixty-five  years,  and  of  good  moral  character,  and  to  fur- 
nish to  the  said  commissioners  for  their  action  the  said  list, 
which  was  duly  done  by  the  said  clerk.  That  upon  the  said 
names  being  furnished  to  the  said  commissioners  by  the  said 
clerk,  the  said  commissioners  inspected  the  same  and  passed 
upon  the  qualifications  of  the  persons  whose  names  appear  upon 
the  said  list;  and  the  said  board,  upon  the  said  investigation, 
judicially  found  that  the  said  names  included  not  less  than  one 
from  every  three  of  such  qualified  electors,  under  the  provisions 
of  said  Constitution,  and  as  far  as  their  judgment  advised,  such 
parties  are  of  good  moral  character  and  between  the  ages  of 
twenty-one  and  sixty-five  years,  and  living  within  the  said  county 
of  Barnwell ;  and  that  the  same,  in  the  judgment  of  the  said 
deponents,  are  all  otherwise  well  qualified  to  serve  as  jurors, 
being  persons,  in  their  opinion,  of  sound  judgment  and  free 
from  all  legal  exceptions.  That  throughout  the  whole  trans- 
action the  said  R.  C.  Roberts,  Jr.,  exercised  none  of  the  func- 
tions of  this  board;  but  only  acted  in  pursuance  of  his  employ- 
ment as  a  clerk  in  the  preparation  of  the  lists  of  said  qualified 
electors,  and  in  no  manner  desired,  nor  did  he  usurp,  any  of 
the  prerogatives  of  the  said  board,  or  relieve  the  said  board  of 
any  of  their  liabilities  or  responsibilities  to  the  public,  under 
the  law  with  reference  to  the  drawing  of  said  jurors.  That  the 
said  board  itself  judicially  passed  upon  the  qualifications,  as 
aforesaid,  of  each  of  the  said  electors,  and  their  names  were 
only  placed  in  the  jury  box  after  their  said  fitness  had  been  so 
determined.  That  upon  the  list  of  jurors  so  selected  being 
accepted  by  the  said  board,  they  caused  the  names  of  the  electors 
so  accepted  to  be  written,  each  on  a  separate  paper  or  ballot, 
so  as  to  resemble  each  other  as  much  as  possible,  and  so  folded 
that  the  names  written  thereon,  in  their  judgment,  were  not  visi- 
ble on  the  outside,  and  placed  them  with  the  said  list  in  the 
regular  jury  box.  *  *  *  And  in  all  other  particulars  the 
said  jury  box  has  been  kept  securely  locked  with  three  separate 
and  strong  locks  with  keys,  etc.,  as  required  by  law;  and  that 
at  the  same  time  the  said  deponents  placed  in  a  special  apart- 
ment in  the  said  jury  box,  known  as  the  "Tales"  box,  the  names 
of  not  less  than  one  hundred  nor  more  than  four  hundred  of  such 
persons  whose  names  appeared  on  the  said  lists  as  reside  within 


232  CONDUCT    OF   THE   TRIAL.  [C HAP.  IV. 

five  miles  of  the  court  house,  and  the  names  of  such  persons  were 
likewise  placed  in  the  said  jury  box." 

The  fact  that  the  clerk  of  the  board  of  county  commissioners 
prepared  a  list  of  the  electors  from  the  tax  books,  which  was 
canvassed  and  revised  by  the  proper  officers,  was  a  mere  irregu- 
larity, and,  therefore,  an  insufficient  ground  for  quashing  the 
array  of  jurors.  In  the  case  of  State  v.  Massey,  2  Hill,  379,  the 
defendant  appealed  upon  the  ground  that  the  jury  list  had  not 
been  made  from  the  tax  returns  according  to  the  act  of  1799. 
After  citing  the  provisions  of  the  act,  the  Court  used  this  lan- 
guage: ''This  is  purely  directory  to  public  officers  in  the  dis- 
charge of  their  duty;  if  they  fail  to  discharge  it,  and  the  jury 
is  drawn  from  the  old  list,  it  does  not  vitiate  the  array,  nor  is 
it  any  objection  to  the  polls.  The  jurors  are  still  honi  et  legales 
homines.  2  Hawk  P.  C,  book  2,  Chap.  3,  §  14.  The  party  is 
not  prejudiced  if  the  jury  for  his  trial  are  from  the  vicinage, 
the  district  where  the  offense  is  committed,  and  have  all  the  other 
legal  qualifications.  It  will  be  observed  that  the  act  does  not 
declare  a  venire  issued  for  jurors  drawn  from  the  old  list  to  be 
void;  nor  does  it  direct  the  array  to  be  quashed.  It  was  not 
intended  to  secure  any  right,  benefit  or  privilege  to  the  defend- 
ant; it  was  merely  to  regulate  the  drawing  of  the  jury  in  such 
a  way  as  to  divide  the  duty  of  serving  upon  the  jury  among  the 
inhabitants  of  a  district." 

In  Thompson  &  Merriam  on  Juries,  sectional  page  134,  it  is 
said:  "Statutes  which  prescribe  the  time  and  manner  of  select- 
ing the  general  list  as  described,  are  generally  treated  as  direc- 
tory. The  primary  object  which  they  have  in  view  is  the  just 
apportionment  of  jury  duty  among  the  citizens  of  the  county 
or  other  jurisdiction,  rather  than  the  preservation  of  the  rights 
of  litigants.  If  the  names  of  persons  not  qualified  for  this  duty 
get  inadvertently  into  this  list,  and  if  such  names  are  drawn 
as  members  of  the  panel  for  a  particular  term,  persons  having 
litigation  at  that  term  have  a  complete  remedy  by  challenging 
for  cause  any  member  of  the  panel  of  being  disqualified  or  par- 
tial. The  general  rule,  therefore,  is  that  irregularities  in  the 
general  list  constitute  no  ground  for  challenging  the  array.  Thus, 
if  the  officers  charged  with  such  duty  fail  to  make  the  list  as 
required  by  law,  and  the  jury  in  default  of  such  list  is  drawn 
from  the  old  lists,  this  does  not  vitiate  the  array  nor  is  it  a  cause 


I 


Sec.  1.]  MC  GANN   V.    HAMILTON.  233 

of  challenge  to  the  polls.  If  the  jurors  are  qualified  individ- 
ually, the  parties  to  suit  are  not  prejudiced."  ^ 

Subdivision  ''b"  will  next  be  considered.  In  refusing  the 
motion,  the  presiding  judge  said:  "As  to  that  list  not  being  in 
the  box,  it  appears  from  the  facts  of  the  case  that  it  was  left  in 
the  clerk 's  office ;  the  clerk  of  the  Court  and  perhaps  the  other 
member  of  the  board  thought  it  was  in  the  box,  it  was  intro- 
duced in  open  Court  and  appears  to  be  regular."  This  was 
only  another  irregularity,  and  is  disposed  of  by  what  was  said 
in  considering  subdivision  "a." 

The  same  may  be  said  of  subdivision  *'e." 

Subdivision  "d"  is  disposed  of  by  the  fact  that  the  presid- 
ing Judge  found  as  a  fact  that  the  lists  were  made  out  from  the 
qualified  electors. 


McGANN  v.  HAMILTON. 
58  Connecticut,  69.     [1889.] 

Carpenter,  J.  This  case  was  tried  to  a  jury  in  the  City  Court 
of  New  Haven.  The  defendant's  attorney  challenged  the  array 
of  jurors  on  the  following  grounds.     *     *     * 

"Second,  because  the  names  of  the  jurors  drawn  were  not  put 
into  the  box  to  be  drawn,  on  paper  rolled  up,  but  were  on 
straight,  unfolded  slips  of  paper,  which  were  not  rolled  up,  but 
lay  flat  in  the  box." 

The  court  disallowed  the  challenge.     *     *     * 

In  respect  to  the  second  cause.  The  charter  requires  that  the 
clerks  of  the  City  Court  "shall  write  each  juror's  name  thus 
chosen,  fairly  on  a  separate  piece  of  paper,  and  roll  up  and  put 
the  same  into  a  box,  which  he  shall  provide  and  keep  for  that 
purpose;  and  whenever  the  sheriff  of  said  city,  or  the  officer 
acting  in  his  stead,  shall  receive  a  warrant  from  the  clerk  of 
said  court  to  summon  a  jury,  he  shall,  in  the  presence  of  the 
judge  or  assistant  judge  and  clerk  of  said  court,  take  out  of 
said  box  as  many  papers  as  his  warrant  directs. ' ' 

1  Compare  Ey.  v.  Schwab,  127  Ky.       a  third  person  to  write  the  names 
82,  where  the  panel  was  quashed  be-       and  place  them  in  the  wheel, 
cause   the   commissioners   permitted 


234  CONDUCT    OF   THE   TRIAL.  [C HAP.  IV. 

The  most  that  the  court  found  on  this  point  is  what  the  clerk 
testified  to,  namely,  ' '  that  when  he  had  wTitten  the  names  of  the 
jurors  on  separate  pieces  or  slips  of  paper,  he  rolled  about  and 
shuffled  the  slips  containing  the  names,  before  he  put  the  same 
into  the  jury  box,  so  that  the  order  of  drawing  out  the  names 
from  the  jury  box  could  not  be  foreknown." 

The  object  of  the  charter  was  to  make  .it  impossible  for  the 
officer  drawing  the  jurjonen  to  exercise  any  partiality  or  dis- 
cretion even.  Had  the  directions  of  the  charter  been  strictly 
followed  it  would  have  been  impossible  to  have  seen  the  names 
before  drawing  them,  and  the  officer  serving  a  jury  warrant 
could  not  have  exercised  any  choice  or  discretion  by  drawing 
names  which  he  desired  to  draw,  if  any,  or  by  omitting  to  draw 
names  which  he  preferred  not  to  draw,  if  any.  As  it  was,  the 
names  of  some  of  the  jurors  might  have  been  on  the  upper  side 
of  the  paper,  and  might  have  been  seen;  the  names  of  others 
might  have  been  on  the  under  side  and  not  seen.  It  was  possi- 
ble for  him  to  see  some  of  the  names,  and  if  for  any  reason  he 
wished  to  draw  them  or  omit  drawing  them,  he  could  have  done 
so.  The  presence  of  the  judge  and  clerk  could  not  prevent  that ; 
but,  if  the  paper  had  been  rolled  up  as  directed,  he  could  have 
had  no  choice,  and  the  presence  of  the  judge  and  clerk  would 
have  prevented  or  detected  his  drawing  any  more  pieces  of 
paper  than  his  precept  required,  and  thus  fraud  or  partiality 
w^ould  have  been  impossible.  The  statute  in  precise  terms  told 
the  clerk  what  to  do.  It  did  not  permit  him  to  exercise  any 
discretion.  He  was  not  at  liberty  to  substitute  for  the  action 
required  some  other  action  which  he  might  consider  as  good 
or  better.  Obedience  was  his  first  and  only  duty.  Disobedience 
made  it  possible  for  the  officer  easily  to  defeat  the  object  of  the 
statute.  The  statute  having  directed  the  way  in  which  the  thing 
should  be  done,  all  the  other  ways  were  impliedly  prohibited. 
We  are  constrained  to  hold,  therefore,  that  the  court  erred  in 
overruling  the  second  cause  of  challenge.^ 

1  See  also  Ins.  Co.  v.  Adams,  110  because  the  jury  wheel  was  not  kept 
Pa.  St.  553,  where  panel  was  quashed       locked  as  directed  by  the  statute. 


Sec.  1.]  SELECTION   OF  THE   JURY.  235 

(b)   Challenges  to  the  Polls. 

(1)    For  Cause. 

Tidd's  Practice.     2  Am.  Ed.     780. 

Challenges  to  the  polls,  in  capita,  are  exceptions  to  particular 
jurors;  and  according  to  Sir  Edward  Coke,  they  are  of  four 
kinds;  first,  propter  honoris  respcctwm,  as  if  a  lord  of  parlia- 
ment be  impaneled  on  a  jury,  in  which  case  he  may  challenge 
himself,  or  be  challenged  by  either  party.  Secondly,  propter 
defectum,  as  if  a  juryman  be  an  alien  born,  or  a  slave  or  bond- 
man; so  if  he  be  not  resident  in  the  county,  or  have  not  the 
necessary  qualification  of  estate.  All  incapable  persons,  as  in- 
fants, idiots,  and  persons  of  non-sane  memory,  are  likewise  ex- 
cluded upon  this  ground.  Thirdly,  propter  affectum,  as  that  a 
juror  is  of  kin  to  either  party,  within  the  ninth  degree ;  that  he 
has  been  arbitrator,  or  declared  his  opinion  on  either  side ;  that 
he  has  an  interest  in  the  cause ;  that  there  is  an  action  depend- 
ing between  him  and  the  party;  that  he  has  taken  money  for 
his  verdict,  or  even  eat  and  drank  at  either  party's  expense; 
that  he  has  formerly  been  a  juror  in  the  same  cause ;  that  he  is 
the  party's  master,  servant,  tenant,  counsellor,  steward,  or  attor- 
ney, or  of  the  same  society  or  corporation  with  him.  All  these 
are  principal  causes  of  challenge :  Besides  which,  there  are  chal- 
lenges to  the  favour,  where  the  party  objects  only  on  account 
of  some  probable  grounds  of  suspicion,  as  acquaintance,  and  the 
like;  the  validity  of  which  must  be  left  to  the  determination  of 
triers,^  who,  in  case  the  first  man  called  be  challenged,  are  two 

1  Per  Curiam  in  O  'Fallen  Coal  Co.  for  error.    The  practice  here  insisted 

V.  Laquet,  198  111.  125.     *     *     *  upon    is    very    uniisuE^l,    to    say    the 

Upon  the  empaneling  of  the  jury,  least.  Under  our  practice  the  com- 
counsel  for  defendant  challenged  one  petency  of  a  juror,  whether  raised 
of  the  jurors  "to  the  favor,"  and  by  principal  challenge  or  challenge 
demanded  triers,  as  at  common  law,  to  the  favor  as  at  common  law,  is 
to  test  his  fitness.  The  Court  dis-  triable  by  the  Court  without  the 
regarded  the  demand  and  proceeded  intervention  of  triers,  and  the  rul- 
to  question  the  juror  as  to  his  com-  ing  of  the  trial  court  as  to  the  com- 
petency. At  the  conclusion  of  that  petency  of  a  juror  is  reviewable  upon 
examination  counsel  again  demanded  appeal  of  writ  of  error.  We  can  see 
triers,  but  the  request  was  again  de-  no  good  reason  for  departing  from 
nied  and  the  juror  held  competent.  that  practice.  The  common  law 
This  juling  of  the  Court  is  assigned  method   of   trying  challenges   would 


236  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

indifferent  persons  named  by  the  court;  and  if  they  try  one 
man  and  find  him  indifferent,  he  shall  be  sworn;  and  then  he 
and  the  two  triers  shall  try  the  next;  and  when  another  is 
found  indifferent  and  sworn,  the  two  triers  shall  be  superseded, 
and  the  two  first  sworn  on  the  jury  shall  try  the  rest.  Fourthly, 
a  juror  may  be  challenged  propter  delictum,  as  for  a  conviction 
of  treason,  felony,  perjury,  or  conspiracy;  or  if,  for  some  infa- 
mous offense,  he  has  received  judgment  of  the  pillory,  tumbrel, 
or  the  like,  or  to  be  branded,  whipped  or  stigmatized;  or  if  he 
be  outlawed  or  excommunicated,  or  hath  been  attainted  of  false 
verdict,  praemunire,  or  forgery. 


MYLOCK  V.  SALADINE. 
1  Wm.  Blackstone,  480.     [1764.] 

This  was  an  action  of  trespass  for  false  imprisonment  in 
which  the  first  verdict  was  set  aside,  as  excessive.  A  rule  was 
then  obtained  for  a  change  of  venue  on  affidavit  showing  preju- 
dice against  the  defendant  and  a  popular  subscription  to  aid 
the  plaintiff.^ 

Lord  Mansfield,  C.  J.  I  have  no  dou1)t  of  the  propriety  of 
changing  the  venue,  where  an  indifferent  trial  cannot  be  had, 
nor  of  the  power  of  this  Court  to  change  it,  when  such  a  case 
appears.  A  juror  should  be  as  white  paper,  and  know  neither 
plaintiff  nor  defendant,  but  judge  of  the  issue  merely  as  an 
abstract  proposition  upon  the  evidence  produced  before  him.  He 
should  be  superior  even  to  a  suspicion  of  partiality.  Upon  the 
motion  for  a  new  trial,  we  were  all  clear  from  the  Eecorder's 
report,  which  was  as  sensible  and  good  a  one  as  ever  was  made 

be    cumbersome   and   attended   with  and   the    appointment   of    triers    by 

unnecessary    delay    in    the    trial    of  the  Court  is  almost  universally  obso- 

causes,    without    any    beneficial    re-  lete.      If    the    court    committed    an 

suits.     It   is   said   in   the   American  error  in  holding  competent  the  juror 

and   English   Encyclopedia   of   Law  objected     to,     notwithstanding     the 

(vol.   12,  p.   357)  :     Even  where,   as  challenge  by  the  defendant,  it  had 

in  New  York,  there  is  still  a  dis-  the  right  to   have  that  ruling  cor- 

tinction  between  principal  challenges  reeted  upon  a  proper  assignment  of 

and    challenges    to    the    favor,    the  error. 

Court  is  generally  the  trier  of  both,  i  Statement   has   been   condensed. 


II 


Sec.  1.]  o'coNNOR  v.  gillaspy.  237 

to  this  Court,  that  the  verdict  was  against  the  weight  of  evi- 
dence, and  that  there  had  been  a  popular  run  against  the  de- 
fendant. If  the  prejudice  be  general,  though  not  universal,  it 
is  sufficient  to  warrant  this  rule.  It  is  impossible  for  the  defend- 
ant to  come  at  particular  facts,  so  as  to  form  a  case  for  a  legal 
challenge.  Here  is  no  universal  accusation  of  the  citizens  of 
Chester;  only  a  well-grounded  apprehension  of  danger  arising 
from  the  general  prejudice.  The  subscription  indeed  is  denied 
in  terms,  but  elusively.  It  is  not  denied  that  contributions 
were  made ;  perhaps  without  any  formal  subscription.  The 
opposition  made  to  this  motion,  and  the  struggle  against  it,  are 
sufficient  to  show  that  the  plaintiff  thinks  he  shall  have  an  un- 
due advantage.  Otherwise  there  is  not  an  iota  difference,  whether 
he  tries  it  in  the  city  or  the  county.  The  town  is  the  same,  the 
time  the  same,  the  expense  exactly  the  same. 

Rule  made  absolute. 


O'CONNOR  v.  GILLASPY. 
170  Indiana,  428.     [1907.] 

Action  by  an  employee  for  personal  injuries. 

Montgomery,  j.  *  *  *  Parties  litigant  in  cases  of  this 
class  are  entitled  to  a  trial  by  a  thoroughly  impartial  jury,  and 
have  a  right  to  make  .such  preliminary  inquiries  of  the  jurors  as 
may  seem  reasonably  necessary  to  show  their  impartiality  and 
disinterestedness.  In  the  exercise  of  this  right  counsel  must  be 
allowed  some  latitude,  to  be  regulated  in  the  sound  discretion  of 
the  trial  court,  according  to  the  nature  and  attendant  circum- 
stances of  each  particular  case.  The  examination  of  jurors  on 
their  voir  dire  is  not  only  for  the  purpose  of  exposing  grounds 
of  challenge  for  cause,  if  any  exist,  but  also  to  elicit  such  facts 
as  will  enable  counsel  to  exercise  their  right  of  peremptory  chal- 
lenge intelligently. 

Questions  addressed  to  this  end  are  not  barred  though  directed 
to  matters  not  in  issue,  provided  they  are  pertinent,  and  made 
in  good  faith.  It  does  not  appear  from  the  record  that  an  acci- 
dent or  indemnity  insurance  company  was  in  any  manner  inter- 
ested in  this  action,  but  the  laws  of  this  State  authorize  the  in- 


238  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

corporation  of  companies  for  indemnifying  employers  against 
liability  for  accidental  injuries  to  employes,  and  it  is  a  matter 
of  common  knowledge  that  numerous  companies  are  engaged  in 
such  insurance  in  this  State.  Although  the  pertinency  or  rele- 
vancy of  the  inquiry  does  not  affirmatively  appear  from  the 
record,  the  circumstances  mentioned  forbid  the  assumption  that 
counsel  acted  in  bad  faith  and  without  some  knowledge  or  in- 
formation inducing  a  belief  that  such  insurance  company  was 
interested  in  the  result  of  the  trial.  We  accordingly  hold  that 
the  judge  did  not  abuse  his  discretion  or  commit  error  in  per- 
mitting appellee's  counsel  over  objection  to  ask  each  juror  upon 
his  voir  dire  whether  he  or  any  member  of  his  family  was  in 
anywise  interested  as  stockholder,  officer  or  agent  of  the  Aetna 
Insurance  Company,  or  of  any  insurance  company  engaged  in 
the  business  of  insuring  against  accidents.  Brusseau  v.  Lower 
Brick  Co.  (1907),  133  Iowa  245,  110  N.  W.  577;  Foley  v.  Cud- 
ahy  Packing  Co.  (1903),  119  Iowa  246,  93  N.  W.  284;  Viou  v. 
Brooks-Scanlon  Lumber  Co.  (1906),  99  Minn.  97,  108  N.  W.  891; 
Antletz  V.  Smith  (1906),  97  Minn.  217,  106  N.  W.  517;  Spoo- 
nick  V.  Backis-Brooks  Co.  (1903),  89  Minn.  254,  94  N.  W.  1079; 
Howard  v.  Beldenville  Lumber  Co.  (1906),  129  Wis.  98,  108 
N.  W.  48;  Faber  v.  C.  Reiss  Coal  Co.  (1905),  124  Wis.  554,  102 
N.  W.  1049;  Cripple  Creek  Mining  Co.  v.  Brabant  (1906),  37 
Colo.  423,  87  Pac.  794;  Vindicator,  etc.,  Mining  Co.  v.  First- 
brook  (1906),  36  Colo.  498,  86  Pac.  313;  Swift  &  Co.  v.  Platte 
(1903),  68  Kan.  1,  72  Pac.  271,  74  Pac.  635;  Dow  Wire  Works 
Co.  V.  Morgan  (1906),  (Ky.),  96  S.  W.  530;  Blair  v.  McCor- 
mack  Const.  Co.  (1907),  107  N.  Y.  Supp.  750.^ 

1  Accord.     Gatzow    v.    Buenving,  senee  of  any  statement  tending  to 

106  Wis.  1 ;  .Comm.  v.  Thresker,  11  show  that  there  was  some  special  rea- 

Gray,  55.     But  an  unreasonable  and  son  or  ground  for  putting  that  ques- 

suggestive    examination    should    not  tion  to  particular  jurors  called  into 

be   permitted.      Howard   v.    Lumber  the    jury    box    for    examination,    it 

Co.,  129  "Wis.  98.  cannot  be  said  that  the  Court  erred 

Harlan,   J.,   in   Connors  v.  XJ.   S.,  in   disallowing  it.     If  the   previous 

158   U.   S.   408:    "Particular   stress  examination  of  a  juror  on  his  voir 

is  laid  upon  the  refusal  of  the  Court  dire  or  the  statement  of  counsel,  or 

to    allow    the    question    to    jurors,  any  facts  brought  to  the  attention  of 

'Would  your  political  affiliations  or  the    Court    had    indicated    that    the 

party  predilections  tend  to  bias  your  juror  might,   or   possibly  would,   be 

judgment  in  this  case  either  for  or  influenced  in  giving  a  verdict  by  his 

against  this  defendant?'    In  the  ab-  political  surroundings,  we  would  not 


r 


Sec.  1.]  BURT  V.  panjaud.  239 

BURT  V.  PANJAUD. 

99  TJ.  8.  180.     [1878.] 

Ejectment.  Begun  in  the  State  Court  in  Florida  and  removed 
to  the  Circuit  Court  of  the  United  States.^ 

Mr.  Justice  Miller  delivered  the  opinion  of  the  Court.  A  bill 
of  exceptions  presents  the  errors  we  are  called  upon  to  examine. 

It  appears  that,  before  the  jury  was  sworn  to  try  the  case, 
one  of  the  panel,  Henry  Plolmes,  was  sworn  on  his  voir  dire,  and 
was  asked  whether  or  not  he  had  aided  or  abetted  the  late  rebel- 
lion against  the  United  States,  when  he  was  told  by  the  presid- 
ing judge  that  it  was  optional  with  him  whether  he  would  answer 
the  question  or  not ;  and  said  Holmes  declined  to  answer.  The 
defendant  excepted  to  this  ruling,  and  then  moved  that 'Holmes 
be  excluded  for  cause,  which  the  court  overruled,  and  defendant 
excepted  again. 

It  appears  affirmatively  that  Holmes  was  not  sworn  as  one  of 
the  jury,  and  no  reason  is  given  for  it. 

1.  "We  are  of  opinion  that,  since  Holmes  did  not  sit  on  the  jury, 
no  harm  was  done  to  defendant.  The  object  of  both  motions 
M^as  to  exclude  him  as  one  incompetent  to  sit.  It  is  immaterial 
to  the  defendant  how  this  was  brought  about.  It  is  possible  that 
if  defendant  had  shown  affirmatively  that  he  was  excluded  by 
reason  of  his  peremptory  challenge,  and  that  in  doing  so  the 
exercise  of  his  right  of  peremptory  challenge  had  been  abridged, 
the  result  might  be  otherwise.  It  is  sufficient  to  say  that  the 
record  does  not  show  that  he  was  on  the  jury,  but  in  fact  that 
he  was  not,  or  that  in  getting  rid  of  him  any  right  of  defendant 
was  abridged  or  lost. 

2.  But  we  are  further  of  opinion  that  a  juror  is  no  more  than 
a  witness  obliged  to  disclose  on  oath  his  guilt  of  any  crime,  or 

say  that  the  Court  could  not  prop-  statement  showing  the  necessity  for 

erly,  in  its  discretion,  if  it  had  re-  propounding  it — as  an  idle  one  that 

garded  the  circumstances  as  exeep-  had  no   material  bearing   upon   the 

tional,   have   permitted    the    inquiry  inquiry  as  to  the  qualifications  of  the 

whether  the  juror 's  political  affilia-  juror,  and  as  designed  only  to  create 

tions   or   party   predilections   would  the  impression  that  the  interests  of 

bias  his  judgment  as  a  juror.     But  the  political  party  to  which  the  ac- 

no    such    exceptional    circiimstances  cused  belonged  were  involved  in  the 

are  disclosed  by  the  record,  and  the  trial." 

Court  might  well  have  deemed  the  i  Statement   has   been    condensed, 

question — unaccompanied     by     any 


240  CONDUCT   OF  THE  TRIAL.  [ChAP.  IV. 

of  any  act  which  would  disgrace  him,  in  order  to  test  his  qualifi- 
cation as  a  juror.2  The  question  asked  him,  if  answered  in  the 
affirmative,  would  have  admitted  his  guilt  of  the  crime  of  treason. 
"Whether  pardoned  by  a  general  amnesty  or  not  pardoned,  we 
think  the  crime  was  one  which  he  could  not  be  required  to  dis- 
close in  this  manner.  Nor  would  this  ruling  deprive  the  party 
of  his  right  of  challenge.  Like  a  conviction  for  felony,  or  any 
other  disqualifying  circumstance,  the  challenger  was  at  liberty 
to  prove  it  by  any  other  competent  testimony. 

He  did  not  offer  to  do  this,  and  as  the  juror's  incompetency 
was  not  proved,  the  court  was  not  bound  to  exclude  him. 


DUNBAR  V.  PARKS. 
2  Tyler's  Rep.  (Vt.)  217.     [1802.] 

The  plaintiff  brought  trover  for  a  horse.  On  the  trial  of  the 
issue  to  the  jury,  after  the  examination  of  all  the  witnesses  on 
the  stand,  and  before  argument,  Mr.  Sias,  one  of  the  jurors, 
observed  to  the  Court  that  he  knew  some  matters  which  had 
relation  to  the  cause;  and  requested  information  whether  it 
would  be  improper  for  him  to  communicate  his  knowledge  to 
his  brethren  of  the  panel  after  they  were  charged,  and  should 
retire  to  the  jury-room. 

Curia.  As  the  juror  had  a  doubt  in  his  mind  relative  to  his 
conduct,  it  is  highly  commendable  in  him  to  apply  to  the  Court 
for  advice.    Let  the  witness's  oath  be  administered  to  him.i 

He  was  accordingly  sworn,  and  testified,  standing  in  the  jury- 
box,  to  a  material  fact. 

Upon  his  cross-examination, 

John  Mattocks,  counsel  for  the  plaintiff,  put  a  question  to  the 
witness,  the  answer  to  which  would  indicate  for  which  party  as 
a  juror  he  would  eventually  decide. 

8ed  per  Curiam.  This  must  not  be  suffered.  Examine  the 
witness  solely  as  to  facts,  and  such  as  came  to  his  knowledge 
before  he  was  sworn  as  a  juror. 

2  On  this  ground  it  was  formerly  ant  was  guilty.     Eex  v.  Edmonds,  4 

thought  improper  in  a  criminal  case  B.  &  Aid.  471. 

to  ask  a  juror  whether  he  had  ex-  i  See    also,    Wright    v.    Crump,    7 

pressed  an  opinion  that  the  defend-  Mod.  1,  post,  p.  318n. 


Sec.  1.]  STATE  V,  stentz.  .  241 

STATE  V.  STENTZ. 

30  Washmgton,  134.     [1902.] 

White,  J.  The  information  in  this  case  was  filed  by  the 
prosecuting  attorney  of  Spokane  county  on  November  5,  1901, 
charging  the  appellant  with  the  crime  of  manslaughter.     *     *     * 

On  the  information,  the  name  of  R.  M.  Sperry,  among  others, 
was  indorsed  as  a  witness  for  the  state.  While  impaneling  the 
jury  in  the  cause,  said  R.  M.  Sperry  was  drawn  as  a  juror,  and, 
upon  being  questioned  as  to  his  competency,  testified  in  sub- 
stance that  he  knew  the  defendant  by  sight,  and  that  he  had  no 
opinion  as  to  the  defendant's  guilt  or  innocence.  This  question 
was  then  asked  him  by  the  prosecuting  attorney :  "I  ask  you  to 
state  whether  or  not  from  any  cause,  whether  I  have  mentioned 
it  or  not,  you  would  be  hindered  or  impeded  in  giving  a  fair  and 
impartial  trial  to  the  defendant."  He  answered:  "The  only 
cause  is  that  I  am  liable  to  be  a  witness  in  the  case.  For  that 
reason,  I  guess  I  would  not  be  eligible  to  sit  on  the  jury."  He 
further  testified  that  that  fact  would  not  prejudice  or  bias  him 
for  or  against  the  defendant,  and  that  he  felt  satisfied  he  could 
give  the  defendant  a  fair  and  impartial  trial.  On  cross-examina- 
tion, he  said  he  had  not  been  subpoenaed  as  a  witness,  but  he 
"distrusted  that  there  was  a  subpoena  issued  for  him  which 
had  not  yet  been  served";  that  "some  of  the  prosecuting  attor- 
neys had  talked  with  him  with  reference  to  something  in  the 
case. ' '    The  following  appears  from  the  record : 

"Mr.  Nuzum  (for  the  defendant)  :  I  submit,  your  Honor, 
that  this  juror's  name  appears  as  a  witness  in  this  information — 
indorsed  on  the  information,  and  although  the  subpoena  has  not 
been  served  on  him,  his'  name  appears  here  as  one  of  the  wit- 
nesses for  the  state,  and  we  submit  a  challenge  for  cause. 
#     #     # 

"Mr.  Sullivan:  I  think  when  the  prosecutor  says  if  he  is 
called  on  the  jury  he  will  not  call  him  as  a  witness,  I  think  that 
ought  to  disqualify  the  juror;  they  have  talked  to  him,  we 
haven't. 

' '  The  Court :    The  challenge  is  denied. 

"Defendant  excepts.     Exception  allowed."     *     *     * 

[The  defendant  used  his  last,  peremptory  challenge  to  this 

H.  T.  p.— 16 


242  CONDUCT   OF   THE   TRIAL.  [CpIAP.  IV. 

juror.  In  the  trial  Sperry  was  called  as  a  witness  and  gave  ma- 
terial testimony.]  ^ 

A  witness  called  upon  to  testify  to  such  facts  might  not  be 
incompetent  as  a  juror,  but  a  witness  who  knows  about  the  con- 
troverted facts  in  the  case — the  res  gestce,  as  we  might  say — such 
a  reckless  driving  of  the  accused  on  the  public  highway  imme- 
diately preceding  the  commission  of  the  offense,  a  short  distance 
from  where  the  offense  was  committed,  it  seems  to  us  knew  ma- 
terial, controverted  facts  that  would  of  necessity  bias  and  influ- 
ence his  judgment  as  a  juror.  To  permit  such  a  person  to  sit 
upon  the  jury  was  to  deprive  the  accused  of  a  trial  by  an  im- 
partial jury.    It  is  true  that  we  have  a  statute  that  declares : 

"A  juror  may  be  examined  by  either  party  as  a  witness,  if 
he  be  otherwise  competent.  If  he  be  not  so  examined,  he  shall 
not  communicate  any  private  knowledge  or  information  that  he 
may  have  of  the  matter  in  controversy  to  his  fellow  jurors,  nor 
be  governed  by  the  same  in  giving  his  verdict."  Section  5001, 
Bal.  Code. 

This  section  must  be  construed  in  connection  with  the  con- 
stitutional guaranty  to  an  accused  person  of  an  impartial  trial, 
and  the  statutes  relative  to  challenging  jurors.  The  law,  by 
simply  declaring  that  a  juror  shall  not  be  governed  by  any  knowl- 
edge that  he  may  have  of  the  facts,  does  not  obviate  the  bias 
that  may  really  exist  in  the  mind  of  the  juror.  A  juror  may  be 
challenged  for  actual  bias.  Section  4988,  Bal.  Code.  Actual 
bias  is  defined  as  "the  existence  of  a  state  of  mind  on  the  part 
of  the  juror  in  reference  to  the  action,  or  to  either  party,  which 
satisfies  the  trier,  in  the  exercise  of  a  sound  discretion,  that  he 
(the  juror)  cannot  try  the  issue  impartially  and  without  preju- 
dice to  the  substantial  rights  of  the  party  challenging. ' '  Section 
4983,  Bal.  Code.  Can  it  be  said  that,  if  the  court  had  known  of 
the  knowledge  of  this  juror  of  the  controverted  facts  in  the 
case,  it  would  have  allowed  him  to  act  as  a  juror  ?  We  think  not. 
If  the  court  had  known  the  facts  as  to  the  knowledge  of  the 
juror,  and  had  not  sustained  a  challenge  for  actual  bias,  we 
think  it  would  have  been  an  abuse  of  sounfl  discretion.  *  *  * 
It  is  a  violation  of  the  defendant's  constitutional  rights  to  deny 
his  challenge  to  a  juror  who  has  formed,  from  newspaper  ac- 
counts, an  opinion  as  to  the  defendant's  guilt,  where  it  would 

1  Inserted  by  the  Editor. 


Jl 


Sec.  1.]  REYNOLDS   V.    UNITED   STATES,  243 

take  strong  evidence  to  change  such  opinion,  even  though  the 
juror  says  he  could  lay  aside  his  opinion,  and  try  the  case  wholly 
upon  the  evidence,  as  if  he  had  heard  nothing  about  it.  State  v. 
Murphy,  9  Wash.  204  (37  Pac.  420).  It  needs  no  argument  to 
show  that  it  would  require  strong  evidence  to  remove  from  the 
juror  Sperry's  mind  the  fact  that  the  accused  was  driving  reck- 
lessly along  the  highway  just  preceding  the  commission  of  the 
offense,  and  that  this  was  an  important  fact  as  to  his  guilt.  The 
juror  Sperry  seemed  to  realize  this  fact  himself,  judging  from 
his  answers.  If  all  the  jurors  who  tried  the  cause  had  been  per- 
sonally cognizant  of  the  same  facts,  as  the  juror  Sperry,  convic- 
tion would  inevitably  have  followed,  and,  as  was  said  in  the  case 
of  State  V.  Murphy,  supra,  "the  trial  would  have  been  little  less 
than  a  farce,  and  our  boasted  constitutional  privilege  of  a  trial 
by  an  impartial  jury  would  be  a  privilege  existing  more  in  theory 
than  practice."  The  discretion  of  the  trial  court  to  determine 
partially  or  impartially  in  a  jury  is  subject  to  review  by  the 
Appellate  Court  under  the  constitutional  guaranty  to  the  accused 
of  a  trial  by  an  impartial  jury.  State  v.  Rutten,  13  Wash.  203 
(43  Pac.  30). 2  A  refusal  to  sustain  challenges  for  proper  cause, 
necessitating  peremptory  challenges  on  the  part  of  the  accused, 
will  be  considered  on  appeal  as  prejudicial  where  the  accused 
has  been  compelled  subsequently  to  exhaust  all  his  peremptory, 
challenges  before  the  final  selection  of  the  jury.  In  as  much  as 
the  appellant  was  compelled  to  get  rid  of  the  juror  Sperry  by  a 
peremptory  challenge,  the  accused  was  deprived  of  one  per- 
emptory challenge  to  which  he  was  by  law  entitled.  For  that 
reason  the  judgment  of  the  court  is  reversed  and  the  cause  re- 
manded for  a  new  trial. 


REYNOLDS  v.  UNITED  STATES. 

98  U.  8.  145.     [1878.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 
*     *     *     2.  As  to  the  challenges  by  the  accused. 

2  In  the  omitted  parts  of  the  opin-  111   Ala.   11;    State  v.   Barber,   11.3 

ion    the    Court    reviewed    Common-  N.  C.  711 ;  White  v.  State,  73  Miss, 

wealth  V.  Joliffe,  7  Watts  .585 ;  Har-  50 ;    Fellows    Case,    5    Greenl.    333 ; 

din  V.  State,  66  Ark.  5.3 ;   Atkins  v.  State  v.  Martin,  28  Mo.  530. 
State,  60  Ala.  45;  Baldwin  v.  State, 


244  CONDUCT   OF  THE  TRIAL,  [ChAP.  IV. 

By  the  Constitution  of  the  United  States  (Amend.  VI.)  the 
accused  was  entitled  to  a  trial  by  an  impartial  jury.  A  juror, 
to  be  impartial,  must,  to  use  the  language  of  Lord  Coke,  *'be 
indifferent  as  he  stands  unsworn."  Co.  Litt.  155  b.  Lord  Coke 
also  says  that  a  principal  cause  of  challenge  is  "so  called  because, 
if  it  be  found  true,  it  standeth  sufficient  of  itself,  without  leav- 
ing anything  to  the  conscience  or  discretion  of  triers"  (id. 
156b)  ;  or,  as  stated  in  Bacon's  Abridgement,  "it  is  grounded 
on  such  a  manifest  presumption  of  partiality  that,  if  found  to 
be  true,  it  unquestionably  sets  aside  the  *  *  *  juror." 
Bac.  Abr.,  tit.  Juries,  E.  1.  "If  the  truth  of  the  matter  alleged 
is  admitted,  the  law  pronounces  the  judgment ;  but  if  denied,  it 
must  be  made  out  by  proof  to  the  satisfaction  of  the  court  or  the 
triers."  Id.  E.  12,  To  make  out  the  existence  of  the  fact,  the 
juror  who  is  challenged  may  be  examined  on  his  voir  dire,  and 
asked  any  questions  that  do  not  tend  to  his  infamy  or  disgrace. 

All  of  the  challenges  by  the  accused  were  for  principal  cause. 
It  is  good  ground  for  such  a  challenge  that  a  juror  has  formed 
an  opinion  as  to  the  issue  to  be  tried.  The  courts  are  not  agreed 
as  to  the  knowledge  upon  which  the  opinion  must  rest  in  order 
to  render  the  juror  incompetent,  or  whether  the  opinion  must 
be  accompanied  by  malice  or  ill-will ;  but  all  unite  in  holding  that 
.it  must  be  founded  on  some  evidence  and  be  more  than  a  mere 
impression.  Some  say  it  must  be  positive  (Gabbet,  Criminal 
Law,  391)  ;  others,  that  it  must  be  decided  and  substantial  (Armi- 
stead's  Case,  11  Leigh  (Va.),  659;  Wormley's  Case,  10  Gratt. 
(Va.)  658;  Neely  v.  The  People,  13  111.  685)  ;  others,  fixed  (State 
V.  Benton,  2  Dev.  &  B.  (N.  C.)  L.  196)  ;  and,  still  others,  deliber- 
ate and  settled  (Staup  v.  Commonwealth,  74  Pa,  St.  458;  Curley 
V,  Commonwealth,  84  Id.  151).  All  concede,  however,  that,  if 
hypothetical  only,  the  partiality  is  not  so  manifest  as  to  neces- 
sarily set  the  juror  aside.  Mr.  Chief  Justice  Marshall,  in  Burr's 
Trial  (1  Burr's  Trial,  416),  states  the  rule  to  be  that  "light 
impressions,  which  may  fairly  be  presumed  to  yield  to  the  testi- 
mony that  may  be  offered,  which  may  leave  the  mind  open  to  a 
fair  consideration  of  the  testimony,  constitute  no  sufficient  ob- 
jection to  a  juror;  but  that  those  strong  and  deep  impressions 
which  close  the  mind  against  the  testimony  that  may  be  offered 
in  opposition  to  them,  which  will  combat  that  testimony  and 
resist  its  force,  do  constitute  a  sufficient  objection  to  him."  The 
theory  of  the  law  is  that  a  juror  who  has  formed  an  opinion  can- 


Sec.  1.]  REYNOLDS   V.   UNITED    STATES.  245 

not  be  impartial.  Every  opinion  which  he  may  entertain  need 
not  necessarily  have  that  effect.  In  these  days  of  newspaper 
enterprise  and  universal  education,  every  ease  of  public  interest 
is  almost,  as  a  matter  of  necessity,  brought  to  the  attention  of 
all  the  intelligent  people  in  the  vicinity,  and  scarcely  any  one 
can  be  found  among  those  best  fitted  for  jurors  who  has  not  read 
or  heard  of  it,  and  who  has  not  some  impression  or  some  opinion 
in  respect  to  its  merits.  It  is  clear,  therefore,  that  upon  the 
trial  of  the  issue  of  fact  raised  by  a  challenge  for  such  cause  the 
court  will  practically  be  called  upon  to  determine  whether  the 
nature  and  strength  of  the  opinion  formed  are  such  as  in  law 
necessarily  to  raise  the  presumption  of  partiality.  The  question 
thus  presented  is  one  of  mixed  law  and  fact,  and  to  be  tried,  as 
far  as  the  facts  are  concerned,  like  any  other  issue  of  that  char- 
acter, upon  the  evidence.  The  finding  of  the  trial  court  upon 
that  issue  ought  not  to  be  set  aside  by  a  reviewing  court,  unless 
the  error  is  manifest.  No  less  stringent  rules  should  be  applied 
by  the  reviewing  court  in  such  a  case  than  those  which  govern 
in  the  consideration  of  motions  for  new  trial  because  the  verdict 
is  against  the  evidence.  It  must  be  made  clearly  to  appear  that 
upon  the  evidence  the  court  ought  to  have  found  the  juror  had 
formed  such  an  opinion  that  he  could  not  in  law  be  deemed  im- 
partial. The  case  must  be  one  in  which  it  is  manifest  the  law 
left  nothing  to  the  "conscience  or  discretion"  of  the  court. 

The  challenge  in  this  case  most  relied  upon  in  the  argument 
here  is  that  of  Charles  Read.  He  was  sworn  on  his  voir  dire; 
and  his  evidence,  taken  as  a  whole,  shows  that  he  ''believed"  he 
had  formed  an  opinion  which  he  had  never  expressed,  but  which 
he  did  not  think  would  influence  his  verdict  on  hearing  the  testi- 
mony. ^     "We  cannot  think  this  is  such  a  manifestation  of  par- 

1  The    examination    of    the    juror  A.     "I  have." 

Read  was  as  follows:  Q.     "Is    that    based    upon    evi- 

Q.     "Have    you    formed    or    ex-  dence?" 

pressed  any  opinion  as  to  the  guilt  A.     '  *  Nothing     produced     iu 

or  innocence  of  this  charge?"  court." 

A.     "I  believe  I  have  formed  an  Q.     "Would    that    opinion    influ- 

opinion. "  enee  your  verdict?" 

By  the  Court :     ' '  Have  you  formed  A.     "I  don 't  think  it  would. ' ' 

and  expressed  an  opinion?"  By    Defendant:      "I    understood 

A.     * '  No,  sir ;  I  believe  not. ' '  you  to  say  that  you  had  formed  an 

Q.     ' '  You   say   you   have   formed  opinion,  but  not  expressed  it. ' ' 

an  opinion?"  A.     "I  don't  know  that  I  have 


246  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

tiality  as  to  leave  nothing  to  the  "conscience  or  discretion"  of 
the  triers.  The  reading  of  the  evidence  leaves  the  impression 
that  the  juror  had  some  hypothetical  opinion  about  the  case,  but 
it  falls  far  short  of  raising  a  manifest  presumption  of  partiality. 
In  considering  such  questions  in  a  reviewing  court,  we  ought  not 
to  be  unmindful  of  the  fact  we  have  so  often  observed  in  our 
experience,  that  jurors  not  unfrequently  seek  to  excuse  them- 
selves on  the  ground  of  having  formed  an  opinion,  when,  on 
examination,  it  turns  out  that  no  real  disqualification  exists.  In 
such  cases  the  manner  of  the  juror  while  testifying  is  often  times 
more  indicative  of  the  real  character  of  his  opinion  than  his 
words.  That  is  seen  below,  but  cannot  always  be  spread  upon 
the  record.  Care  should,  therefore,  be  taken  in  the  review^ing 
court  not  to  reverse  the  ruling  below  upon  such  a  question  of 
fact,  except  in  a  clear  case.  The  affirmative  of  the  issue  is  upon 
the  challenger.  Unless  he  shows  the  actual  existence  of  such  an 
opinion  in  the  mind  of  the  juror  as  will  raise  the  presumption 
of  partiality,  the  juror  need  not  necessarily  be  set  aside,  and 
it  will  not  be  error  in  the  court  to  refuse  to  do  so.  Such  a  case, 
in  our  opinion,  was  not  made  out  upon  the  challenge  of  Read. 
The  fact  that  he  had  not  expressed  his  opinion  is  important  only 
as  tending  to  show  that  he  had  not  formed  one  W'hieh  disqualified 
him.  If  a  positive  and  decided  opinion  had  been  formed,  he 
would  have  been  incompetent  even  though  it  had  not  been  ex- 
pressed. Under  these  circumstances,  it  is  unnecessary  to  consider 
the  ease  of  Ransohoff,  for  it  was  confessedly  not  as  strong  as 
that  of  Read. 


IRVINE  V.  KEAN. 

14  Sergeant  &  Rawle,  292.     [1826.]  Jjl 

Per  Curiam.  There  is  but  one  exception  in  this  case  which 
appears  to  the  court  to  be  of  any  weight.  The  admission  of 
Jacob  Cramer  as  a  witness  was  right,  and  the  charge  of  the 

expressed  an  opinion ;  I  have  formed  A.     "I  do.* ' 

one. ' ' 

Q.     "Do  you  now  entertain  that 
opinion  ? ' ' 


Sec.  1.]  IRVINE  V.  kean.  247 

President  of  the  Court  of  Common  Pleas,  to  the  jury  was  correct. 
But  the  plaintiffs  challenged  Francis  McEwen,  a  juror,  who 
being  called  objected  himself  to  being  sworn,  "because  he  had 
heard  all  the  evidence  at  the  former  trial,  and  had  made  up  and 
expressed  his  opinion  on  the  facts  then  given  in  evidence,  but 
said  that  his  mind  was  always  open  to  conviction,  on  another 
state  of  facts."  The  court  overruled  the  challenge.  This  juror, 
if  he  had  been  on  the  former  jury,  would  have  been  liable  to  a 
challenge,  yet,  in  that  case,  his  mind  might  have  been  open  to 
conviction,  if  dilferent  evidence  had  been  given  on  the  second 
trial.  But  the  law  presumes  that  a  man  who  has  once  made  up 
his  mind,  especially  if  he  has  delivered  it  to  others,  will  not  be 
perfectly  impartial.  The  presumption  is  a  safe  one,  and  gen- 
erally accords  with  the  truth.  In  the  present  case  it  was  im- 
possible to  say  whether  any  new  evidence  would  be  given;  and 
therefore,  from  the  juror's  own  account  of  the  state  of  his  mind, 
it  would  have  been  hazardous  to  permit  him*  to  be  sworn.  It  is 
objected,  that  if  this  rule  prevails,  it  will  be  difficult  to  procure 
a  jury  in  any  case  which  has  been  the  subject  of  much  conversa- 
tion, because  every  man  forms  some  opinion  upon  the  state  of 
facts  which  he  has  heard.  It  is  very  true  that  men  generally 
form  an  opinion  upon  the  case  as  it  comes  to  their  knowledge ; 
but,  when  that  knowledge  is  derived  from  common  report,  any 
sensible  man  knows  the  uncertainty  of  such  reports,  and  keeps 
his  mind  open  to  a  change  of  opinion  when  the  whole  truth  shall 
be  ascertained.  Upon  this  principle,  it  was  held  by  the  Supreme 
Court  of  New  York,  8  Johns.  445,  to  be  no  cause  for  challenge 
that  the  juror  had  said,  "if  the  report  of  the  neighbors  was  true, 
the  defendant  was  in  the  wrong."  The  case  before  us  is  very 
different,  where  there  had  been  a  former  trial,  in  which  it  must 
be  supposed  that  all  the  evidence  in  the  power  of  the  parties 
had  been  produced.  On  the  trial  of  Aaron  Burr,  Chief  Justice 
Marshall  laid  down  the  rule,  "that  to  have  made  up  and  de- 
livered an  opinion  that  the  prisoner  entertained  the  treasonable 
designs  with  which  he  was  charged,  and  that  he  retained  those 
designs  and  was  prosecuting  them  when  the  act  charged  in  the 
indictment  was  alleged  to  have  been  committeed,  was  good  cause 
of  challenge. "  (1  Burr's  Trial,  419,  420.)  It  is  the  opinion  of 
the  court,  that  after  the  impression  made  on  the  mind  of  ]\IcEwen 
by  the  first  trial,  there  was  danger  of  his  no  longer  being  per- 
fectly impartial ;  ,and  it  being  altogether  uncertain  whether  the 


248  CONDUCT    OF    THE   TRIAL,  [  ChAP.  IV. 

state  of  the  facts  would  be  altered  on  the  second  trial,  the  plain- 
tiff's challenge  ought  to  have  been  allowed.  The  judgment  is 
therefore  to  be  reversed,  and  a  venire  de  novo  awarded. 


CHICAGO,  ETC.,  RY.  CO.  v.  ABLER. 

56  Illinois,  344.     [1870.] 

Mr,  Justice  "Walker  delivered  the  opinion  of  the  court : 

This  was  an  action  brought  by  appellee  to  recover  a  penalty 
against  appellants  for  the  failure  to  ring  a  bell  or  sound  a  whis- 
tle at  the  crossing  of  a  highway  with  their  engine  and  trains. 
The  suit  was  instituted  under  the  one  hundred  and  thirty-eighth 
section  of  the  railroad  law  of  the  5th  of  November,  1849.  On  the 
trial  in  the  court  below,  the  jury  found  a  verdict  for  $1,150, 
for  various  breaches  of  the  statute,  upon  which  a  judgment 
was  rendered. 

It  is  first  urged,  that  the  court  below  erred  in  refusing  to 
allow  the  peremptory  (?)  challenges  of  jurors  made  by  appel- 
lants. Four  of  the  jurors  who  tried  the  case  were  asked  on 
their  voir  dire  if  the  evidence  were  evenly  balanced,  which  way 
they  would  incline  to  find,  and  each  answered  that  he  would,  in 
such  case,  lean  against  the  defendants,  and  one  of  them  stated 
he  would  do  so  because  the  company  were  able  to  stand  it,  and 
he  thought  a  private  individual  should  "have  a  little  mite  the 
advantage. ' ' 

It  is  a  fundamental  principle,  that  every  litigant  has  the  right 
to  be  tried  by  an  impartial  and  disinterested  tribunal.  Bias  or 
prejudice  has  always  been  regarded  as  rendering  jurymen  in- 
competent. And  when  a  juror  avows  that  one  litigant  should 
have  any  other  than  the  advantage  which  the  law  and  evidence 
give  him,  he  declares  his  incompetency  to  decide  the  case.  He 
thereby  proclaims  that  he  is  so  far  partial  as  to  be  unable  to  do 
justice  between  litigants,  or  that  he  is  so  far  uninformed,  and 
his  sense  of  right  is  so  blunt,  that  he  can  not  perceive  justice, 
or,  perceiving  it,  is  unwilling  to  be  governed  by  it. 

The  rule  is  so  plain  and  manifest  that  the  party  claiming  to 
recover  must  prove  his  cause  of  action,  it  is  a  matter  of  surprise 
that  an  adult  can  be  found  who  would  not  know  that  such  is 


II 


Sec.  1.]  MC  CARTHY  V.  THE  CASS  AVENUE  RY.   CO.  249 

the  commou  sense  as  well  as  the  common  honesty  of  the  rule. 
No  ordinary  business  man  would  be  willing  that  a  claim  pressed 
against  him  should  be  allowed,  and  he  be  compelled  to  pay  it, 
when  the  evidence  for  and  against  the  claim  was  evenly  bal- 
anced. And  how  such  men  can  bring  themselves  to  apply  a 
different  rule,  as  jurors,  to  the  rights  of  others,  is  incompatible 
with  the  principles  of  justice.  Nor  does  the  fact  that  jurors, 
who  avow,  under  oath,  that  they  would  incline  to  favor  a  recov- 
ery by  the  plaintiff  on  evidence  evenly  balanced,  declare  that 
they  are  impartial,  in  the  slightest  degree  tend  to  prove  their 
impartiality.  Their  statement  only  tends  to  prove  that  they  are 
so  far  lost  to  a  sense  of  justice,  that  they  regard  what  all  right- 
thinking  men  know  to  be  wrong,  as  just  and  impartial.  To  try  a 
cause  by  such  a  jury  is  to  authorize  men  who  state  that  they  will 
lean,  in  their  finding,  against  one  of  the  parties,  unjustly  to 
determine  the  rights  of  others,  and  it  would  be  no  difficult  task 
to  predict,  even  before  the  evidence  was  heard,  the  verdict  that 
would  be  rendered.  Nor  can  it  be  said  that  instructions  from 
the  court  would  correct  the  bias  of  jurors  who  swear  that  they 
incline  in  favor  of  one  of  the  litigants.  In  suits  for  the  recov- 
ery of  penalties,  the  law  does  not  warrant  a  recovery,  unless 
the  proof  clearly  preponderates  in  favor  of  the  plaintiff.  And 
to  admit  jurymen,  who  avow  that  they  will  not  even  require  a 
preponderance,  would  be  to  violate  the  rule.  The  objection  was 
well  taken  to  the  jurors,  and  the  court  erred  in  permitting  them 
to  act  on  the  trial  below. 


McCarthy  v.  the  cass  avenue  ry.  co. 

92  Missouri,  536.     [1887.] 

Black,  J.  The  plaintiffs  are  the  parents  of  John  McCarthy, 
an  unmarried  minor.  Their  cause  of  action  is  based  upon  alleged 
negligence  in  violating  an  ordinance  of  the  city  of  St.  Louis, 
by  which  drivers  and  conductors  of  street  cars  are  required  to 
keep  a  vigilant  watch  for  persons  on  foot,  and  especially  chil- 
dren, either  on  the  track  or  approaching  the  same,  and,  upon 
the  first  appearance  of  danger  to  such  persons,  to  stop,  in  the 
shortest  time  and  space  possible. 


250  CONDUCT    OF   THE   TRIAL.  [ChaP.  IV 

The  first  contention  is  that  the  court  erred  in  overruling  the 
plaintiff's  challenge  to  four  jurors  for  cause.  The  examination 
of  one  of  them  will  present  the  question  as  to  the  others,  and,  as 
reported  in  the  bill  of  exceptions,  is  as  follows :  Upon  a  special 
jury  of  eighteen  being  called  and  sworn,  plaintiff's  counsel  asked 
juror  Sawyer  whether,  in  an  action  brought  to  recover  dam- 
ages under  the  statutes  of  Missouri,  on  account  of  killing  a  per- 
son, he  would  have  any  bias  or  prejudice  one  way  or  the  other; 
the  juror  answered  that  he  did  have  a  bias  against  such  a  case — 
that  he  was  prejudiced  against  all  damage  cases.  Being  asked 
if  such  bias  existed  at  this  time,  he  answered  that  it  did.  Asked 
if  it  would  require  evidence  to  remove  said  prejudice  in  this 
case,  he  said  in  answer :  ' '  Well,  I  suppose  there  would  have  to 
be  evidence  anyway" — that  it  would  require  strong  evidence. 

Counsel  for  the  plaintiff's  then  made  his  challenge  for  cause, 
and,  thereupon,  the  court  asked  the  juror  if  he  could  hear  the 
evidence  in  the  case  and  render  a  verdict  according  to  the  law 
and  the  evidence ;  the  juror  answered  that  he  believed  he  could. 
By  the  court :  ' '  Suppose  a  case  in  hand,  one  in  which  the  evi- 
dence, in  other  respects,  sustains  plaintiff'  's  cause  of  action,  could 
you,  under  the  evidence  and  instructions  of  the  court,  give  the 
plaintiff'  a  verdict?"      Answer:    "Yes,  sir." 

Plaintiff 's  counsel  then  asked :  ' '  ]\Iy  question  still  is,  would 
the  prejudice  that  exists  in  your  mind  now,  against  all  damage 
suits,  including  this,  be  such  that  it  would  require  evidence  to 
remove  it  before  you  could  find  a  verdict  for  plaintiffs?"  An- 
swer: "If  you  will  allow  me  I  will  answer  it  in  this  way — if 
the  evidence  went  to  show  that  the  party  was  entitled  to  dam- 
ages, then  as  a  matter  of  justice,  I  would  be  in  favor  of  award- 
ing damages;  otherwise,  I  could  not."  Q.  "Would  you  start 
into  the  case  with  a  prejudice  against  it  which  would  require 
evidence  to  remove "? "  A.  "  Not  in  this  case.  I  have  no  prejudice 
against  this  case,  because  I  don't  know  anything  about  it." 

It  is  not  every  opinion  of  a  juror  concerning  the  matter  in 
litigation,  which  will  operate  as  a  disqualification.  To  have 
that  effect,  it  must  be  such  an  opinion  as  will  influence  his 
judgment  in  the  consideration  of  the  cause.  This  is  substan- 
tially the  rule  of  the  statute.  Sec.  2796.  Opinions  formed,  but 
not  of  a  fixed  character,  and  which  readily  yield  to  evidence,  do 
not  disqualify  the  juror.  State  v.  Walton,  74  Mo.  270.  If  he 
have  such  a  bias  or  prejudice  against  a  class  of  cases  that  his 


Sec.  1.]  NORTHERN  PACIFIC  R.  R.  CO.  V,  HERBERT.  251 

judgment  will  be  warped,  then  he  should  be  set  aside  and  not 
accepted  as  a  juror ;  but  it  ought  to  appear  that  his  bias  is  such 
as  to  influence  his  judgment. 

Again,  the  competency  of  a  juror  is  a  mixed  question  of  fact 
and  law.  It  is  for  the  court  to  try  this  question  of  fact,  and 
the  finding  of  the  trial  court  as  to  the  competency  of  the  juror 
ought  not  to  be  disturbed,  unless  it  is  clearly  and  manifestly 
against  the  evidence.  This  rule  is  to  be  deduced  from  what 
has  been  heretofore  said  by  this  court.  State  ex  rel.  v.  National 
Bank,  80  Mo.  626;  jMontgomery  v.  Railroad,  90  Mo.  446. 

Now,  from  the  examination  of  the  juror  in  this  case,  it  clearly 
appears  that  he  had  no  opinion  as  to  this  case.  His  evidence,  as 
a  whole,  shows  that  he  was  opposed  to  unfounded  personal  dam- 
age suits;  but  if  the  evidence  showed  that  the  plaintiffs  were 
entitled  to  damages,  then  he  would  be  in  favor  of  awarding  them. 
What  more  could  be  asked  of  any  juror  f  But  applying  the  rule 
before  asserted,  it  becomes  clear  that  we  ought  not  to  disturb 
the  finding  of  the  circuit  court,  as  to  the  competency  of  these 
jurors.^ 


NORTHERN  PACIFIC  R.  R.  CO.  v.  HERBERT. 

116  U.  S.  612.      [1885.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court.  After 
stating  the  facts  as  above  reported,'  he  continued: 

1.  As  to  the  challenge  to  a  juror.  It  appears  that  one  Weaver, 
summoned  as  a  juror,  testified  that  he  was  a  lumber  dealer,  and 
that  the  company  gave  him  a  place  on  its  right  of  way  for  a  lum- 
ber yard,  without  rent,  and  also  that  he  had  heard  the  accident 
to  the  plaintiff  spoken  of  and  explained.  It  was  not  shown, 
however,  that  he  had  any  actual  bias  for  or  against  either  party, 
or  any  belief  or  opinion  touching  the  merits  of  the  case.  He 
was,  nevertheless,  challenged,  and  the  allowance  of  the  challenge 
constitutes  the  first  error  assigned.     It  does  not  appear  whether 

1  See  Anson  v.  D wight,  18  la.  241.  ability  to  disregard  it.     Theobald  v. 

Where   the   examination   discloses   a  Transit  Co.,  191  Mo.  395. 

strong  bias,  the  Court  should  not  be  '  For  a  statement  of  this  case,  see 

influenced  by  the  juror's  professed  post,  689. 


252  CONDUCT    OF   THE   TRIAL.  [  ChAP.  IV. 

the  challenge  was  for  cause  or  was  peremptory.  Under  the  stat- 
ute of  Dakota  each  party  is  entitled  to  three  peremptory  chal- 
lenges. It  is  for  the  party  asserting  error  to  show  it ;  it  will  not 
be  assumed.  But  if  we  regard  the  challenge  as  for  cause,  its 
allowance  did  not  prejudice  the  company.  A  competent  and 
unbiased  juror  was  selected  and  sworn,  and  the  company  had, 
therefore,  a  trial  by  an  impartial  jury,  which  was  all  it  could 
demand.  United  States  v.  Cornell,  2  Mason,  104;  Heaston  v. 
Cincinnati  &  Fort  Wayne  Railroad  Co.,  16  Ind.  275,  279 ;  Atchi- 
son, Topeka  &  Sante  Fe  Railroad  Co.  v.  Franklin,  23  Kansas, 
74;  Carpenter  v.  Dame,  10  Ind.  125,  130;  Morrison  v.  Lovejoy, 
6  Minn.  349,  350.- 


HILDRETH  v.  CITY  OF  TROY. 

101  Neiv  York,  234.     [1886.] 

Andrews,  J.  This  action  was  brought  to  recover  for  injuries 
sustained  by  the  plaintiff  from  the  negligence  of  the  defendant 
in  failing  to  keep  Congress  street  in  the  city  of  Troy  in  safe 
condition  for  travel,  and  resulted  in  a  verdict  for  the  plaintiff 
for  $1,800.  It  appears  that  upon  the  impaneling  of  the  jury, 
the  plaintiff  "excused"  eight  jurors  drawn  from  the  regular 
panel,  residents  of  the  city  of  Troy,  upon  the  ground  that  they 
were  interested  in  the  result  of  the  action,  to  which  proceeding 
the  city  attorney  objected  on  the  ground  that  residents  and  tax- 
payers of  the  city  are  not  disqualified  as  jurors  in  city  cases, 
if  otherwise  competent.  The  court  overruled  the  objection  and 
held  that  all  such  jurors  were  disqualified,  to  which  ruling  the 
attorney  for  the  defendant  excepted.  Thereafter  four  additional 
jurors,  residents  of  the  city,  were  drawn  and  the  same  pro- 
ceeding  was  had,  and  they  were  likewise  excluded.  The  jury 
box  was  filled  from  other  names  in  the  panel,  and  none  of  the 
jurors  who  sat  were  objected  to  or  challenged.  It  is  not  claimed 
that  the  jurors  excluded  by  the  ruling  of  the  court  were  inter- 
ested except  as  taxpayers  of  the  city.    By  the  rule  of  the  com- 

2  And  so  in  State  v.  Eeynolds,  171 
Mo.  552;  Glasgow  v.  Ry.,  191  Mo. 
347. 


II 


Sec.  1.]  HILDRETH  V.  CITY  OP  TROY.  253 

mon  law  the  inhabitants  of  a  municipality,  or  the  members  of 
any  body  politic,  were  incompetent  to  sit  as  jurors  in  a  case  in 
which  the  corporation  was  a  party.  They  were  deemed  to  be 
interested  and  such  interest  was  a  good  cause  of  principal  chal- 
lenge. (Coke  upon  Littleton,  157,  a,  b.)  The  common  law  has 
been  modified  in  this  State  by  general  statutes  making  the  in- 
habitants of  a  town  or  county  competent  jurors  in  suits  brought 
by  or  against  such  town  or  county  (1  E-.  S.  357,  §  4;  id.  384, 
§  4;  2  id.  420,  §  58),  and  as  to  the  inhabitants  of  cities,  by 
special  provision,  inserted  in  nearly  all  cases,  in  the  charters  of 
incorporation.  The  charter  of  Troy,  enacted  in  1816,  provides: 
''That  upon  the  trial  of  any  issue,  or  upon  the  taking  or  making 
of  any  inquisition,  or  upon  the  judicial  investigation  of  any  facts 
whatever,  to  which  issue,  inquest  or  investigation  the  mayor, 
recorder,  aldermen  and  commonalty  of  said  city  are  a  party, 
or  in  which  they  are  interested,  no  person  shall  be  deemed  an 
incompetent  juror  by  reason  of  his  being  an  inhabitant,  free- 
holder or  freeman  of  the  said  city."  (Chap.  1,  §  16,  Laws  of 
1816.)  This  provision  has  never  been  repealed  or  amended,  and 
was  in  force  at  the  time  of  the  trial  of  this  action.  The  ruling 
of  the  learned  trial  judge  excluding  from  the  jury  the  residents 
of  Troy  on  the  ground  of  interest,  was  in  contravention  of  this 
explicit  provision  of  law  and  was  plainly  erroneous. 

The  question  "presented  is,  whether  the  error  of  the  judge  is 
ground  for  the  reversal  of  the  judgment.  The  proceeding  on  the 
part  of  the  plaintiff  was  in  substance  a  challenge.  It  was  so 
treated  by  the  attorney  for  the  city  and  by  the  court.  The  court 
ruled  that  residents  of  the  city  were  legally  disqualified  as  jurors, 
and  excluded  them  on  that  ground  alone.  The  right  of  a  party 
to  except  to  a  determination  of  the  court  upon  a  challenge  to 
a  juror,  and  to  have  such  determination  reviewed  on  appeal  is 
expressly  given  by  the  Code  (§  1180).  This  section  recognizes 
the  determination  of  a  challenge  as  involving  a  legal  right,  which 
may  be  reviewed  and,  if  erroneous,  set  aside.  The  General  Term 
disposed  of  the  question  on  the  ground  that  the  rejection  of  a 
competent  juror  was  not  ground  of  error,  where  the  jurors  who 
actually  try  the  case  are  competent.  We  cannot  assent  to  this 
view.  In  our  judgment  the  adoption  of  this  principle  would 
seriously  imperil  the  system  of  jury  trial  and  lead  to  practices 
which  the  statutes  regulating  the  drawing  of  jurors  were  designed 
to  prevent.    The  main  purpose  of  the  statutes  for  the  drawing 


254  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

and  selection  of  trial  jurors  is  the  securing  of  a  fair  and  impar- 
tial jury.  To  this  end,  provisions  are  made,  which,  if  followed, 
prevent  the  selection  of  a  jury  either  by  the  court,  or  the  officers 
of  the  court,  or  by  either  of  the  parties  to  the  action,  and  exclude 
from  the  jury  box  all  jurors  not  indifferent,  or  who  for  any  reason 
are  disqualified  to  act  as  jurors;  while  at  the  same  time  they 
secure  to  the  parties  the  advantage  of  a  jury  constituted  by  lot 
from  all  the  qualified  jurors  undrawn  on  the  panel.  By  the  Stat. 
3,  Geo.  II,  §  11,  "for  the  better  regulation  of  juries,"  it  is  pro- 
vided that  the  first  twelve  persons  drawn,  and  appearing,  and 
approved  as  indifferent,  should  be  the  jury  to  try  the  case.  This 
provision  was  incorporated  into  the  Revised  Laws  of  1813  (1  R. 
L.  331,  §  20),  and  into  the  Revised  Statutes  (2  R.  S.  420,  §  61), 
and  was  re-enacted  in  the  Code  of  Civil  Procedure  (§  1166), 
without  any  substantial  change.  The  section  of  the  code  is  in 
this  language :  ' '  The  first  twelve  persons  who  appear  as  their 
names  are  drawn,  and  called,  and  approved  as  indifferent  between 
the  parties,  and  not  discharged  or  excused,  must  be  sworn ;  and 
constitute  the  jury  to  try  the  case,"  Sections  1032  and  1033 
enumerate  causes  for  which  jurors  may  be  discharged  or  excused. 
The  language  of  section  1166  is  mandatory.  Blackstone  refers 
with  just  admiration  to  the  safeguards  thrown  around  the  selec- 
tion of  a  jury  by  the  English  statutes,  and  observes  that  they  are 
admirably  designed  for  the  avoiding  of  frauds  and  secret  man- 
agement, by  electing  the  twelve  jurors  out  of  the  whole  panel 
by  lot.  (2  Bl.  Com.  365.)  It  is  said  that  no  injury  resulted  to 
the  defendant  from  the  erroneous  exclusion  of  the  city  jurors, 
since  a  competent  jury  actually  tried  the  case.  The  court  can- 
not say  that  the  trial  would  have  resulted  differently  if  the  city 
jurors  had  not  been  excluded.  On  the  other  hand  the  contrary 
cannot  be  affirmed.  It  is  certain  that  except  for  the  erroneous 
ruling  the  jury  would  have  been  differently  constituted.  Jurors 
differ  in  intelligence,  judgment,  and  fitness  to  act  as  jurors.  It 
is,  we  think,  the  legal  right  of  a  party  to  have  the  jury  selected 
from  the  competent  names  in  the  jury  box,  and  that  the  range 
of  selection  shall  not  be  limited  by  excluding  without  cause  com- 
petent jurors  from  the  panel.  It  cannot  be  doubted  that  if  an 
incompetent  juror  had  been  admitted  against  the  objection  of  the 
defendant,  the  judgment  would  be  set  aside,  and  yet  in  many 
cases  it  would  be  impossible  to  show  any  actual  injury.  A  person 
not  a  resident  of  the  county,  or  over  sixty  years  of  age,  or  with- 


II 


Sec.  1.]  HILDBETH  V.  CITY  OF  TROY.  255 

out  the  requisite  property  qualification,  is  not  a  competent  juror 
(Code,  §  1027),  but  it  would,  we  conceive,  be  no  answer  to  an 
exception  taken  to  his  admission,  that  no  actual  injury  was  shown 
to  have  resulted.  The  violation  of  the  legal  right  of  the  party  to 
have  the  case  tried  by  competent  jurors,  would  be  conclusive.  The 
error  in  this  case  was  in  improperly  rejecting  competent  jurors. 
The  court  added  a  disqualification,  not  only  not  found  in  the 
statute,  but  which  the  statute  declares  shall  not  constitute  a  dis- 
qualification. The  law  allows  in  a  civil  case  two  peremptory 
challenges  to  each  party.  The  action  of  the  court  was  equivalent 
to  allowing  the  plaintiff  fourteen  peremptory  challenges,  because 
it  excluded  from  the  jury  without  adequate  cause,  upon  the 
motion  of  plaintiff,  fourteen  jurors  presumably  competent.  If 
the  court  had  in  form  allowed  the  plaintiff  more  than  two 
peremptory  challenges,  would  it  be  an  answer  to  an  exception, 
that  nevertheless  there  was  no  legal  injury,  since  a  competent 
jury  was  subsequently  impaneled?  We  think  the  error  of  the 
court  in  excluding  the  city  jurors  is  available  to  the  defendant 
on  this  appeal.  The  learned  trial  judge  doubtless  decided  the 
point  under  the  misapprehension  that  the  case  was  governed  by 
the  common  law,  without  having  in  view  the  Statute  of  1816.  But 
the  charter  is  declared  on  its  face  to  be  a  public  act,  and  the 
judge  is  presumed  to  have  had  notice  of  its  provisions.  It  does 
not  appear  whether  his  attention  was  specially  called  to  the 
provision  in  Section  16,  but  the  counsel  for  the  plaintiff:  took  the 
objection  to  the  jurors  specifically  on  the  ground  that  as  residents 
of  Troy  they  were  interested,  and  so  disqualified,  and  the  de- 
fendant's counsel  insisted  that  they  were  not  disqualified  for  that 
reason,  and  the  court  ruled  the  point  for  the  plaintiff.  We  think 
he  must  bear  the  consequences  of  the  error,  and  that  he  cannot 
escape  by  charging  the  defendant  with  a  violation  of  duty  in 
omitting  to  call  the  attention  of  the  court  to  the  provision  of 
the  Statute  of  1816.  which,  so  far  as  appears,  may  not  have  been 
known  to  him  at  the  time.  The  judgment  should  be  reversed. 
The  statute  makes  elaborate  provision  for  securing  an  impartial 
jury.  It  provides  that  the  first  twelve  competent  jurors  drawn, 
who  are  indifferent  and  not  discharged  or  excused,  shall  con- 
stitute the  jury.  The  law  prescribes  the  qualifications  of  jurors. 
The  court  cannot  add  to,  or  detract  from  them.  It  cannot  itself 
select  the  jury,  directly  or  indirectly.  It  cannot  in  its  discretion, 
or  capriciously,  set  aside  jurors  as  incompetent,  whom  the  law 


256  CONDUCT   OF   THE  TRIAL.  [ChAP.  IV. 

declares  are  competent,  and  thus  limit  the  selection  of  a  jury  to 
jurors  whose  names  may  be  left.  If  this  is  done,  a  legal  right  is 
violated,  for  which  an  appellate  court  will  give  redress.  The 
jury  system  to  be  successfully  administered,  requires  not  only 
absolute  impartiality  in  fact,  in  the  drawing  of  jurors,  but  such 
an  adherence  to  forms  and  methods  of  procedure  as  will  secure 
public  confidence  and  prevent  any  suspicion  of  improper  or  un- 
fair dealing. 

We  have  not  lost  sight  of  the  cases  holding  that  a  mere  irregu- 
larity on  the  part  of  ministerial  officers  in  the  selection  and 
drawing  of  jurors  is  not  ground  of  error,  unless  it  appears  that 
it  operated  to  the  prejudice  of  the  party.  (Friery  v.  People,  2 
Keyes,  424,  425 ;  Ferris  v.  People,  35  N.  Y.  125 ;  People  v.  Ran- 
som, 7  "Wend.  417.)  But  the  erroneous  exclusion  by  a  judge  on 
the  trial  from  a  particular  panel,  of  a  class  of  persons  regularly 
drawn,  on  the  ground  of  incompetency,  stands,  we  think,  upon  a 
different  principle  and  is  governed  by  different  considerations. 
The  judgment  should  be  reversed.    All  concur.^ 


(2)  Peremptory  Challenges. 
STATE  V.  POTTER. 

18  GomiecUcut,  166.     [1846.'] 

Williams,  C.  J.  *  *  *  2.  Again  it  is  said  the  prisoner 
has  been  deprived  of  a  right  to  a  peremptory  challenge,  which 
he  was  entitled  to. 

It  is  not  denied  that  time  and  opportunity  were  given  to  the 
prisoner  to  challenge  a  juror;  but  it  is  claimed  that  he  had  not 
all  the  time  the  law  allows  him.  Dickerman,  a  talesman,  had 
been  examined,  and  there  was  no  cause  of  challenge  known  against 
him.  The  court  then  told  the  counsel  if  they  intended  a  peremp- 
tory ehallenge  they  must  make  it  at  that  time.  They  had  then  a 
reasonable  opportunity  to  make  their  challenge ;  but  they  claim 
they  may  make  it  at  their  own  time,  provided  it  is  done  before 
the  jurors  are  sworn.     The  statute,  it  is  said,  gives  them  power 

1  And  so  in  Searle  v.  Bishop  of 
Springfield,  203  Mass.  492. 


Sec.  1.]  STATE  V.  potter.  257 

to  challenge  peremptorily  twenty  jurors  summoned  and  impan- 
elled,— and  much  criticism  has  been  had  upon  the  word  "im- 
panelled. "  It  is  claimed  that  it  means  the  jury  sworn  to  try  the 
cause;  and  that  until  sworn  they  are  not  impanelled. 

That  they  form  a  jury  when  thus  impanelled,  is  true ;  but  that 
they  are  not  impanelled  until  sworn,  is  not  true.  On  the  other 
hand  we  learn  from  high  authority  that  a  jury  are  said  to  be 
impanelled  when  the  sheriff  has  entered  their  names  into  the 
panel — a  little  piece  of  parchment.     Co.  Litt.  158  b. 

The  Statute  of  3  Geo.  II  says,  a  sheriff  shall  not  return  a  sep- 
arate panel  for  every  separate  cause,  but  one  and  same  panel 
for  every  cause.  3  Bla.  C.  358.  And  we  can  hardly  open  a  book 
upon  the  subject  but  it  speaks  of  the  panel  returned  by  the 
sheriff.    4  M.  &  Sel.  467. 

A  prisoner  has,  by  statute,  a  right  to  a  copy  of  the  panel,  in 
certain  cases,  before  the  time  of  trial.  3  Bac.  Ab.  742,  tit.  Juries, 
B.  8  (Gwil,  ed.).  If  it  applied  only  to  jurors  sworn,  then  it 
would  imply  that  jurors  might  be  challenged  after  they  were 
sworn,  which  is  not  claimed. 

But  it  is  said  the  clerk  informs  the  prisoner  that  if  he  would 
challenge  them,  or  any  of  them,  before  they  are  sworn  he  shall 
be  heard.  This  certainly  is  the  form.  We  understand  it  to  mean 
that  his  challenges  must  be  made  before  the  jurors  are  sworn; 
but  we  do  not  suppose  that  the  prisoner  is  therefore  to  direct  at 
what  time  before  they  are  sworn  this  shall  be  done.  He  is  called 
upon  then  to  make  his  challenges,  and  when  he  has  had  a  fair 
opportunity  to  do  this,  he  has  had  the  privilege  the  statute  con- 
fers upon  him. 

He  has  a  right  to  plead,  to  examine  witnesses,  to  be  heard  by 
counsel ;  but  the  court  directs  the  time  when  he  shall  plead,  when 
his  witnesses  shall  be  heard,  and  the  order  in  which  his  counsel 
shall  speak.  The  prisoner  may  think  it  would  be  better  for  him 
that  his  counsel  should  have  the  closing  argument,  particularly 
in  cases  where  he  assumes  the  burden  of  proof,  as  in  cases  of 
insanity ;  and  we  see  not  why  he  may  not  as  well  claim  to  exercise 
his  rights  in  his  own  time  in  that  case  as  in  this.  The  order  of 
time  and  manner  of  proceeding  on  all  such  subjects,  must  of 
course  be  under  the  direction  of  the  court,  unless  the  statute  pre- 
scribes otherwise.  To  make  the  statute  what  it  is  claimed  it 
should  read,   the  accused  may  challenge  peremptorily  twenty 

H.  T.  p.— 17 


258  CONDUCT   OF   THE   TRIAL,  [ChAP.  IV, 

jurors  returned  and  impanelled  at  any  time  before  they  are 
sworn. 

But  it  is  said  that  by  the  English  practice  the  party  has  a 
right  to  challenge  until  the  juror  is  sworn.  There  each  juror 
is  sworn  as  soon  as  he  has  been  examined  and  opportunity  given 
for  challenges.  By  our  practice  the  jurors  are  none  of  them 
sworn  until  all  have  been  examined  and  opportunity  offered  for 
challenge.  Here,  when  one  has  been  examined  and  opportunity 
to  challenge  given,  he  is  directed  to  take  his  seat  as  a  juror,  just 
as  in  England  after  he  has  been  sworn ;  and  the  delay  in  swear- 
ing him  is  not  to  give  any  privilege  to  the  prisoner  which  he 
could  not  claim  elsewhere,  but  to  prevent  multiplying  oaths  and 
to  save  the  delay  incident  to  the  administration  of  the  oath  twelve 
times  instead  of  once.  The  prisoner  now  claims,  as  matter  of 
right  to  himself,  a  privilege  which  he  could  have  no  pretense  to 
claim  after  the  person  challenged  had  been  declared  a  juror  by 
the  English  practice;  and  if  the  principle  claimed  here  by  the 
prisoner  is  correct,  that  he  must  be  allowed  this  privilege  to  the 
last  moment  before  the  trial  commences,  the  practice  is  wrong 
then,  which  deprives  him  of  this  privilege  by  swearing  each  juror 
before  he  has  had  full  opportunity  to  make  his  challenge. 

The  effect  of  the  practice  in  both  cases  is  the  same.  In  the 
one  case  his  opportunity  is  closed  when  the  juror  is  sworn;  in 
the  other  case  when  he  is  directed  to  take  his  seat. 

Our  practice  gives  one  advantage  to  the  prisoner,  that  if  any- 
thing new  has  occurred  since  the  juror  was  directed  to  take  his 
seat  as  juror,  the  party  will  not  be  absolutely  precluded  from 
taking  the  benefit  of  it,  as  he  is  in  England  after  he  is  sworn, 
unless  by  consent.  Tyndal's  Case,  Cro.  Car.  291-2.  And  for  that 
reason  the  court  (when  a  motion  was  made  to  challenge  the  juror 
soon  after  the  notice  given)  inquired  of  the  counsel  whether  any- 
thing had  occurred  since  the  notice  given  by  the  court  which 
called  for  the  exercise  of  this  right,  to  which  it  was  answered 
there  had  not ;  by  which  it  appears  that  the  sole  question  is 
whether  the  court  or  the  prisoner  shall  direct  as  to  the  time  of 
challenge  before  the  jury  are  sworn.  For  if  the  prisoner  had  this 
right,  it  must  be  conceded  that  the  reason  which  prompts  him 
to  the  exercise  of  it  is  not  to  be  inquired  into. 

If,  on  the  other  hand,  he  has  not  the  right,  then  it  is  apparent 
that  the  court,  out  of  humanity  to  the  prisoner,  v/ere  disposed 
to  listen  to  any  reason  which  called  for  a  dispensation  of  the  ruk 


Sec.  1.]  HUNTER  V,  PARSONS.  259 

they  had  established,  as  they  were  not  precluded  entirely  by 
administering  the  oath,  as  would  have  been  the  ease  in  England.^ 
As  no  such  cause  existed,  they  saw  no  reason  to  rescind  the  rule 
they  had  made,  conformable  to  our  practice,  of  which  they  had 
given  notice  merely  that  the  party  should  not  claim  to  be  sur- 
prised thereby. 

It  being  a  case  in  which  life  was  concerned,  the  court  were 
willing  to  find  cause  to  relieve  against  the  operation  of  a  good 
rule,  if  it  was  like  to  prejudice  the  party;  but  they  did  not 
intend  thereby  to  weaken  its  effect  by  yielding  it  upon  a  claim 
of  right.  And  no  case  has  been  brought  in  support  of  this 
claim,  except  one  from  Ohio.  Hooker  v.  State  of  Ohio,  4  Ohio 
R.  348.  Upon  looking  at  that  case,  we  find  that  the  court  below 
had  decided  that  they  would  allow  no  challenge  for  cause  until 
the  prisoner  had  made  all  his  peremptory  challenges.  This 
judgment  was  very  properly  reversed  by  the  Superior  Court, 
conformably  to  our  constant  practice  as  well  as  to  well  settled 
principles. 

In  giving  their  reasons,  the  court  remark  that  this  right  of 
peremptory  challenge  should  be  kept  open  to  the  latest  possible 
period,  to-wit,  up  to  the  actual  swearing  of  the  jury;  in  other 
words,  that  in  this  respect  they  follow  the  English  practice, 
which  we  have  shown  is  substantially  followed  here. 


HUNTER  V.  PARSONS.  ^ 

22  Michigan,  95.     [1870.] 

Campbell,  Ch.  J.  Parsons  sued  Hunter  upon  a  promissory 
note,  the  genuineness  of  which  was  disputed,  it  being  claimed 
either  that  an  original  and  imperfect  instrument  had  been  altered, 
or  that  a  false  one  entirely  had  been  substituted. 

Upon  the  opening  of  the  trial,  plaintiff  below  examined  all  the 
panel  on  their  voir  (lire,  and  then  for  the  first  time  challenged 
one  of  them  peremptorily.  It  was  claimed  he  should  have  chal- 
lenged him  after  his  preliminary  examination  and  before  he 
proceeded  to  question  the  rest.  We  see  no  error  in  this.  There 
is  no  rule  of  practice  forbidding  the  exercise  of  the  right  of  per- 
emptory challenge  at  any  time  before  the  jury  is  sworn.     And 


260  CONDUCT   OF   THE   TRLUL,.  [  ChAP.  IV. 

unless  a  party  has  ascertained  what  jurors  can  be  excluded  for 
cause,  and  therefore  need  not  be  challengod  peremptorily,  he 
may  lose  the  chief  value  of  this  privilege.  4  Bl.  Com.,  353 ;  Peo- 
ple V.  Bodine,  1  Denio,  281. 


STATE  V.  HAYS. 

23  Missouri,  287.     [1856.] 

Kyland,  J.     *     *     * 

The  first  point  of  the  defendant's  counsel  is  in  regard  to  the 
impaneling  of  the  petit  jury  who  tried  the  case.  The  bill  of  ex- 
ceptions shows  that  when  the  cause  was  taken  up  for  trial,  the 
defendant  moved  the  court  to  compel  the  State,  by  her  circuit 
attorney,  to  make  her  peremptory  challenges  to  the  panel  before 
the  defendant  should  be  compelled  to  make  his  peremptory 
challenges,  which  the  court  refused  to  do,  and  compelled  the 
defendant  to  strike  from  the  panel  his  peremptory  challenges, 
without  knowing  which  of  the  panel  the  State  would  strike 
off,  upon  her  peremptory  challenges,  making  both  parties 
challenge  at  the  same  time,  to  which  opinion  the  defendant 
excepted.  The  record  does  not  show  us  how  this  was  done. 
There  might  have  been  thirty-six  jurors  present,  free  from 
all  objection.  Then  the  State  having  four  peremptory  chal- 
lenges, and  the  defendant  twenty,  the  remaining  twelve  would 
be  the  jury.  If  so,  the  defendant  has  not  been  deprived  of  any 
advantage  or  legal  right.  He  has  challenged  his  twenty,  but  he 
says  he  may  have  challenged  some  of  those  who  had  been  chal- 
lenged by  the  State,  and  had  he  known  whom  the  State  would 
have  challenged,  it  would  have  given  him  the  power  to  have 
challenged  others.  All  this  may  be  so,  and  still  he  has  lost  no 
right  or  privilege.  He  has  the  thirty-six  men  from  whom  his 
jury  were  to  be  selected.  The  State  could  refuse  four  and  he 
twenty.  No  one  of  the  jurors  was  put  on  his  panel  against  his 
right,  nor  in  violation  of  his  right.  Suppose  the  State's  four 
and  his  twenty  were  confined,  as  it  is  possible  they  might  be,  to 
the  same  twenty  men,  leaving  sixteen  behind,  why  then  the  State 
has  just  as  much  right  to  complain  of  having  lost  her  four  chal- 
lenges, because  she  did  not  know  those  whom  he  would  challenge, 


Sec.  1.]  STATE  V.  hays.  261 

as  he  has.  The  first  twelve  then  called  will  make  the  jury,  and 
the  fact  that  there  are  sixteen  of  which  to  make  a  jury,  instead 
of  twelve,  can  surely  be  no  deprivation  of  any  right  or  privilege. 
We  do  not  think  this  such  an  error  as  would  justify  the  court  in 
reversing.  The  prisoner  does  not  appear  to  have  been  deprived 
of  any  legal  right.  In  what  order  the  parties  shall  exercise  this 
right  is  a  matter  within  the  discretion  of  the  Circuit TJourt.  The 
simplest  rule  upon  this  subject,  ajid  one  to  which  there  would 
seem  to  be  no  objection,  is  that  of  requiring  the  parties  to  chal- 
lenge as  the  jurors  are  called  and  pronounced  qualified,  the 
plaintiff  always  speaking  first.  This  rule,  I  believe,  has  been 
generally  practiced;  at  least  as  far  as  my  experience  upon  the 
Circuit  Court  extends,  I  never  knew  it  deviated  from,  and  that 
experience  embraces  a  period  of  eighteen  years.  But  as  the  rule 
adopted  in  this  case  deprives  the  prisoner  of  no  legal  right,  and 
it  does  not  appear  that  the  discretion  was  exercised  oppressively, 
it  forms  no  ground  for  a  reversal.  The  right  of  peremptory 
challenge  is  a  right  to  reject,  and  not  to  select  a  juror.  In  the 
ease  of  the  United  States  v.  Marchant  et  al.  (4  Mason,  160), 
Justice  Story  said:  "The  right  to  challenge  for  cause  is  un- 
limited, but  the  right  of  peremptory  challenges,  without  cause, 
is  limited.  What  is  the  right  of  peremptory  challenge  but  a 
right  to  exclude  from  the  trial  any  persons  who  are  disagreeable 
to  the  party  on  trial  ?  Suppose  the  panel  to  consist  of  seventy- 
two  persons  and  the  challenges  to  be  limited  to  twenty,  all  that 
the  prisoner  can  do  is  to  exclude  twenty  from  this  list,  and  it 
depends  altogether  upon  the  order  in  which  the  jurors  are  called 
who  may  be  excluded  or  not.  If  the  prisoner  challenge  the  first 
twenty  who  are  called,  the  twelve  next  called  from  the  remaining 
fifty-two  constitute  the  jury.  It  is  true,  if  he  chooses  to  suffer 
any  person  to  be  sworn  before  he  has  exhausted  his  challenges, 
to  that  extent  he  selects  his  jury ;  but  this  is  a  new  incident  to  his 
right  to  exclude  jurors  to  a  limited  extent,  and  not  the  principal 
object  contemplated  by  the  law."  Mr.  Justice  Blackstone,  in 
his  Commentaries  (4  Black.  Com.  353),  with  his  usual  per- 
spicacity and  accuracy,  states  the  reasons  on  which  the  right  of 
peremptory  challenge  is  founded.  He  says :  "In  criminal  cases, 
or  at  least  in  capital  ones,  there  is,  in  favorem  vitae,  allowed  to 
the  prisoner  an  arlutrary  and  capricious  species  of  challenge  to 
a  certain  number  of  jurors,  without  showing  any  cause  at  all, 
which  is  called  a  peremptory  challenge,  a  provision  full  of  that 


262  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

tenderness  and  humanity  to  prisoners  for  which  our  English 
laws  are  justly  famous.  This  is  grounded  on  two  reasons :  1.  As 
every  one  must  be  sensible  what  sudden  impressions  and  un- 
accountable prejudices  we  are  apt  to  conceive  upon  the  bare  looks 
and  gestures  of  another,  and  how  necessary  it  is  that  a  prisoner, 
when  put  to  defend  his  life,  shall  have  a  good  opinion  of  his 
jury,  the  want  of  which  might  totally  disconcert  him,  the  law 
wills  not  that  he  should  be  tried  by  any  one  man  against  whom 
he  has  conceived  a  prejudice,  even  without  being  able  to  assign 
a  reason  for  his  dislike.  2.  Because,  upon  challenge  for  cause, 
if  the  reason  assigned  prove  insufficient  to  set  aside  the  juror, 
perhaps  the  bare  questioning  his  indifference  may  sometimes 
provoke  resentment ;  to  prevent  all  ill  consequences  from  which, 
the  prisoner  is  still  at  liberty,  if  he  pleases,  peremptorily  to  set 
him  aside."  Being  satisfied,  from  authority  as  well  as  from  the 
reason  of  the  case,  that  the  right  of  peremptory  challenge  was 
given  to  exclude  rather  than  to  select,  and  the  prisoner  having 
exercised  that  right  in  this  case,  we  can  not  see  how  he  has  been 
injured  or  deprived  of  his  legal  rights  in  the  mode  adopted  in 
this  case  for  impaneling  the  jury.  We  conclude,  therefore, 
that,  although  the  rule,  heretofore  so  long  practiced,  of  requiring 
the  parties  to  challenge  as  the  juror  is  called  up  to  be  sworn, 
after  having  been  qualified  to  serve  and  so  pronounced  by  the 
court,  the  State  always  to  speak  first,  is  the  best  and  least 
objectionable  mode,  yet  a  deviation  therefrom,  without  showing 
that  in  consequence  thereof  the  prisoner  has  been  injured,  will 
not  authorize  a  reversal.  The  point,  therefore,  is  ruled  against 
the  prisoner.! 


COLLISOX  V.  I.  C.  R.  R.  CO. 

239  Illinois,  532.      [1909.'] 

Cartwright,  C.  J.     *    *     *     The  first  thing  which  occurred  on 
the  trial  which  is  claimed  to  be  an  error  is  that  the  court,  in  em- 

1  In    civil    cases    the    practice    in  three    jurors;    but    when    there    are 

Missouri   is    now    regulated    by    the  several     plaintiffs     and     defendants 

following  statute:  they  shall  join   in  their   challenges, 

See.  7281,  E.  S.  1909:    "In  trials  and  the  plaintiff  shall,  in  all  cases, 

of  civil  causes  each  party   shall  be  announce  his  challenges  first. ' ' 
entitled   to   challenge,   peremptorily, 


Sec.  2.]  stowe  v.  querner.  263 

panelirg  the  jury,  compelled  the  defendant  to  examine  and  pass 
upon  the  second  panel  of  four  jurors  before  the  same  were 
examined  and  accepted  by  the  plaintiff.  The  statute  ^  provides 
that  the  jury  shall  be  passed  upon  and  accepted  in  panels  of 
four  by  the  parties,  commencing  with  the  plaintiff,  which  means 
that  the  plaintiff  shall  pass  upon  the  jurors  until  four  have  been 
accepted  and  tendered  to  the  defendant,  when  the  defendant 
is  to  pass  upon  the  jurors  until  a  panel  of  four  is  accepted  and 
tendered  back.  When  one  panel  of  four  is  complete  the  plaintiff 
is  to  pass  upon  and  accept  the  next  panel  of  four  and  tender  the 
same  to  defendant,  and  so  on.  The  plaintiff  is  not  called  upon 
to  tender  a  second  panel  of  four  to  the  defendant  before  the 
defendant  has  tendered  back  the  first  panel  of  four  (Spies  v. 
People,  122  111.  1),  but  when  four  are  taken  by  both  sides  the 
plaintiff  must  go  ahead  with  the  next  panel.  The  ruling  was 
wrong,  but  the  rights  of  the  defendant  do  not  appear  to  have 
been  prejudiced  in  any  way  by  it  and  therefore  it  is  not  ground 
for  a  reversal. 


Section  2.     Introduction  of  Evidence. 
(a)  Preliminary  Questions. 

STOWE  V.  QUERNER. 
L.  R.  5  Exchequer,  155.     [1870.] 

Bramwell,  B.  In  this  case  the  question  which  was  argued 
before  us  yesterday  arose  thus:  During  the  trial  of  an  action 
on  a  policy  of  insurance  it  became  necessary  to  produce  the 

1  See.  21,  Ch.  78,  R.  S.  111.  1913.  touching   their   qualifications  to   try 

Upon  the  impaneling  of  any  jury  in  any  such  causes;  Provided,  that  the 

any  civil  cause  now  pending,  or  to  jury  shall   be  passed   upon   and  ac- 

be  hereafter  commenced  in  any  Court  cepted  in  panels  of  four  by  the  par- 

in  this  State,  it  shall  be  the  duty  of  ties,  commencing  with  the  plaintiff, 

the    Court,    upon    request    of    either  Sec.  69,  Ch.  110  lb.     In  all  civil 

party  to  the   suit,  or  upon  its  own  actions  each  party  shall  be  entitled 

motion,  to  order  its  full  number  of  to    a   challenge   of    five    (5)    jurors 

twelve  jurors  into  the  jury  box,  be-  without  showing  cause  for  such  chal- 

fore  either  party  shall  be  required  Icnge. 
to  examine  any   of  the   said  jurors 


264  CONDUCT    OF   THE   TRL\L.  [ChAP.  IV. 

policy,  and  the  plaintiffs  gave  evidence  of  a  duly  stamped  policy 
having  been  executed,  and  of  its  being  in  the  possession  of  the 
defendant.  Notice  to  produce  had  also  been  given.  Upon  its 
being  called  for,  however,  the  defendant  declined  to  produce  it, 
and  thereupon  the  plaintiffs  proposed  to  read  a  document  which 
purported  to  be  a  copy,  and  which  they  had  received  from  the 
defendant's  broker.  The  defendant  objected,  and  offered  to 
displace  the  effect  of  the  evidence  of  the  existence  of  the  policy 
which  had  been  given  by  the  plaintiffs,  and  to  render  the  copy 
inadmissable  by  showing  that  no  policy  had  ever  been  executed 
at  all.  The  judge  refused  to  hear  this  interlocutory  evidence, 
and  allowed  the  document  to  be  admitted  and  read.  We  are  all 
of  opinion  that  he  was  right.  If  the  objection  on'  the  part  of 
the  defendant  had  been  that  there  was  a  policy,  but  that  it  was 
not  stamped,  it  would  perhaps  have  been  well  founded.  But 
here  it  was  objected  that  there  was  no  policy  executed  at  all ;  an 
objection  which  goes  to  the  entire  ground  of  action,  and  one 
which,  if  it  had  prevailed,  might  have  left  the  jury  nothing  to 
decide.  For,  suppose  the  judge  had  ruled  that  the  copy  was 
inadmissible  on  the  ground  that  there  was  no  original  ever  in 
existence,  the  plaintiffs  would  in  fact  have  had  no  case  left,  and 
the  judge  would  himself  have  decided  the  whole  of  it.  The 
difference  between  this  case  and  Boyle  v.  Wiseman,  10  Ex.  647, 
is  very  wide.  There  the  plaintiff  had  the  means,  if  he  had 
chosen,  of  giving  the  alleged  original  in  evidence,  but  here  if 
the  copy  had  been  excluded  the  plaintiffs  would  have  been  left 
without  any  means  of  proof  whatever.  Put  an  illustration 
analagous  to  the  present.  Suppose  an  action  to  be  brought  for 
libel,  and  a  copy  of  a  letter  which  is  destroyed,  but  which  con- 
tained the  libel  complained  of,  is  produced  and  tendered  in 
evidence.  Could  the  defendant  say,  ' '  Stop  ;  I  will  show  that  no 
letter  was  in  point  of  fact  ever  written,  and  I  call  upon  you, 
the  judge,  to  hear  evidence  upon  this  point,  and  if  I  satisfy 
you  that  no  such  letter  ever  existed,  you  ought  not  to  admit 
the  copy?"  Surely  not;  for  that  would  be  getting  the  judge 
to  decide  what  is  peculiarly  within  the  province  of  the  jury. 
The  distinction  is  really  this :  where  the  objection  to  the  reading 
of  a  copy  concedes  that  there  was  primary  evidence  of  some 
sort  in  existence,  but  defective  in  some  eollateral  matter,  as,  for 
instance,  where  the  objection  is  a  pure  stamp  objection,  the 
judge  must,  before  he  admits  the   copy,  hear  and  determine 


Sec.  2,]  glassell  v.  mason.  265 

whether  the  objection  is  well  founded.  But  where  the  objection 
goes  to  show  that  the  very  substratum  and  foundation  of  the 
cause  of  action  is  wanting,  the  judge  must  not  decide  upon  the 
matter,  but  receive  the  copy,  and  leave  the  main  question  to  the 
jury. 

It  was  further  said  there  was  no  stamped  policy  in  existence. 
But  the  real  objection,  as  I  have  already  observed,  was  that 
there  was  no  policy  at  all,  and  therefore,  of  course,  no  stamped 
policy.  The  want  of  stamp  was  not  the  actual  point  relied  on, 
and  it  was  in  a  manner  merged  in  the  other  objection.  We  are, 
therefore,  of  opinion  that  this  rule  should  be  discharged.^ 


GLASSELL  v.  MASON. 

32  Alabama,  719.     [1858.] 

Action  by  the  assignee  of  a  promissory  note  alleged  to  have 
been  lost  or  destroyed,  in  which  the  plaintiff  gave  evidence 
tending  to  show  the  execution,  contents,  assignment  and  loss 
of  the  instrument.  The  court  refused  an  instruction  to  the 
effect  that  the  plaintiff  was  bound  to  satisfy  the  jury  that  the 
note  was  destroyed.  Verdict  for  plaintiff,  and  defendant  took 
the  case  up  on  writ  of  error.^ 

Stone,  j.  *  *  *  The  rule  which  requires  preliminary  proof 
of  the  destruction  or  loss  of  a  written  contract,  before  evidence  of 
its  contents  can  be  received,  is  a  rule  affecting  the  grade  of  the 
evidence — not  the  measure  of  proof.  It  is  a  rule  of  law  founded 
in  good  policy ;  a  failure  to  comply  with  which  does  not  simply 
leave  the  party's  evidence  insufficient.  It  goes  farther,  and 
pronounces  it  wholly  illegal.  It  is  not  one  of  the  questions  of 
fact  within  the  issue  before  the  jury.  It  is  an  outside  inquiry, 
preliminary  to  the  introduction  of  any  evidence  to  the  jury  as 
to  the  contents.  If  this  were  not  the  case,  a  plaintiff  who  proved 
a  just  demand  against  the  defendant,  and  the  amount  of  it, 
must  yet  lose  his  case,  if  he  failed  to  convince  the  jury  that  the 
written  evidence  of  his  contract  was  lost  or  destroj^ed.     Suppose, 

1  Accord.  Grady  v.  Ins.  Co.,  60  Siegjfried  v.  Levari,  6  S.  &  E.  307. 
Mo.   116;    Powell  V.   Adams,   9   Mo.  i  Statement  has  been  condensed. 

766;   Bk.  V.  Myers,  6   S.   &  R.   11; 


266  CONDUCT   OF   THE   TRIAL.  [CiLVP.  IV. 

in  such  ease,  the  jiir^y  should  return  a  special  verdict;  and,  in 
addition  to  finding  the  issue  joined  in  favor  of  the  plaintiff, 
should,  of  their  own  motion,  further  find  that  the  note  or  bond 
was  not  lost.  What  judgment  would  be  rendered  on  such 
verdict  ?  Evidently  for  the  plaintiff,  because  the  verdict,  to  the 
above  extent,  would  not  be  responsive  to  the  issue.  The  jury 
would  be  pronouncing  on  the  legality,  not  the  sufficiency  of  the 
evidence.  This  preliminary  proof  is  always  addressed  to  the 
court,  and  may  be  made  by  the  party  himself,  when  the  facts 
are  within  his  knowledge.  See  1  Greenlf.  Ev.  §  349,  and  note 
§  558 ;  Thomas  v.  DeGraffenreid,  17  Ala.  602 ;  also  authorities 
cited  in  Brister  v.  The  State,  26  Ala.  107.2  The  paper  called  an 
assignment  was  properly  admitted  in  evidence. 


DOE  Dcm.  JENKINS  v.  DAVIES. 
10  Adolphus  &  Ellis  (N.  S.),  314.     [1847.] 

Lord  Denman,  C.  J.  It  was  admitted  that  the  defendants 
were  entitled  to  the  verdict,  if  one  Elizabeth  Stevens  was  legiti- 
mate ;  that  is,  if  her  mother  was  the  wife  of  her  father,  John 
Davies. 

The  plaintiff  began,  and  brought  forward  facts  to  make  this 
improbable,  particularly  the  declarations  of  John  Davies,  who 
was  reported  to  have  said  that  he  had  not  married  her,  because 
she  was  a  bad  woman.  It  appeared,  however,  that  they  lived 
together  and  passed  as  man  and  wife.  Some  members  of  the 
family  had  treated  her  as  his  wife ;  others  had  treated  her  daugh- 
ter, Elizabeth  Stevens,  as  their  relation. 

Witnesses  were  then  called  for  the  defendants,  who  gave  addi- 
tional evidence  to  the  same  effect ;  and  then  an  attorney  produced 
a  certificate  of  the  marriage  of  John  Davis  with  Eleanor  Dillon, 
and  stated  that  he  had  received  it  from  Elizabeth  Stevens  when 
he  was  inquiring  into  the  pedigree.     He  was  then  asked  whether 

2  See    also    Jackson    v.    Frier,    16  accuracy  of  the  copy  is  a  question 

Johnson,  193 ;  Smith  v.  Sleap,  1  Car.  for  the  jury,     Eosendorf  v.  Baker, 

&  K.  48.    When  a  copy  of  a  lost  in-  8  Or.  241. 
strument   has   been    introduced,    the 


Sec.  2.]  winslow  v.  bailey.  267 

Stevens  made  any  statement  respecting  her  mother's  marriage; 
and  the  question  was  objected  to  on  various  grounds. 

First :  That  she  was  not  yet  conclusively  proved  to  be  a  member 
of  the  family.  The  answer  is,  that  it  was  the  duty  of  the  judge 
to  decide  whether  it  was  proved  to  him,  and  he  decided  that  it 
was.  There  are  conditions  precedent  which  are  required  to  be 
fulfilled  before  evidence  is  admissible  for  the  jury.  Thus  an 
oath,  or  its  equivalent,  and  competency,  are  conditions  precedent 
to  admitting  viva  voce  evidence ;  and  apprehension  of  immediate 
death  to  admitting  evidence  of  dying  declarations ;  and  search 
to  secondary  evidence  of  lost  writings;  and  stamp  to  certain 
written  instruments;  and  so  is  consanguinity  or  affinity  in  the 
declarant  to  declarations  of  deceased  relatives.  The  judge  alone 
has  to  decide  whether  the  condition  has  been  fulfilled.  If  the 
proof  is  by  witnesses,  he  must  decide  on  their  credibility.  If 
counter  evidence  is  offered,  he  must  receive  it  before  he  decides, 
and  he  has  no  right  to  ask  the  opinion  of  the  jury  on  the  fact 
as  a  condition  precedent.  See  Bartlett  v.  Smith  (11  M.  &  W. 
483).  In  this  case  the  judge  thought  the  condition  had  been 
fulfilled,  and  we  are  of  the  same  opinion. 

It  is  further  objected  that  the  question  whether  Elizabeth 
Stevens  was  a  member  of  the  family  was  in  fact  the  issue  for  the 
jury,  as  she  was  not  contended  to  be  so  unless  she  was  legitimate ; 
and,  if  she  was  decided  to  be  legitimate,  her  declarations  to  prove 
her  legitimacy  were  superfluous.  The  answer  is,  that  neither 
the  admissibility  nor  the  effect  of  the  evidence  is  altered  by  the 
accident  that  the  fact  which  is  for  the  judge  as  a  condition 
precedent  is  the  same  fact  which  is  for  the  jury  in  the  issue. ^ 


WINSLOW  v.  BAILEY. 

16  Maine,  319.     [1839.] 

Emery,  J.  The  suit  is  on  a  note  of  the  28th  of  May,  1835, 
given  in  payment  for  a  bond  assigned  by  the  plaintiff  to  the 
defendant. 

1  See  also,  Hitchins  v.  Eardly,  L. 
R.,  2  P.  &  D.  248,  where  the  same 
situation  was  presented. 


268  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

The  defendant  resisted  payment  because,  he  alleged,  that  the 
note  was  obtained  by  false  representations  of  the  quantity  of 
timber  on  lands  reserved  for  public  use  in  the  town  of  Chester, 
in  the  county  of  Penobscot,  containing  1,000  acres  more  or  less, 
for  which  the  bond  was  given  to  Winslow.  There  was  a  certifi- 
cate of  Jeremiah  Jameson,  dated  May  14,  1835,  that  he  had 
explored  the  tract,  and  that  it  contained  10,000  feet  of  the  best 
quality  of  pine  timber  to  the  acre  in  his  opinion. 

It  was  also  proved  that  the  plaintiff,  between  the  10th  and  20th 
of  May,  1835,  had  been  on  to  the  land,  and  that  there  was  very 
little  timber  on  the  tract.  And  it  was  proved  that  this  paper 
was  in  the  plaintiff's  possession  at  and  about  the  time  it  was 
made,  and  that  he  used  it  to  induce  others  to  purchase  the  land, 
and  was  in  his  possession  a  short  time  before  the  sale  of  the 
bond,  and  a  few  days  after  in  the  hands  of  one  of  the  defendants. 
After  these  facts  and  circumstances  were  proved  the  defendants 
offered  the  Jameson  certificate,  which  they  alleged  was  false. 

To  the  admission  of  this  paper  in  evidence,  to  show  that  it  was 
used  by  the  plaintiff  in  the  sale  of  the  bond  to  induce  the 
defendants  to  purchase,  the  plaintiff  objected  until  proof  was 
introduced  to  show  that  it  was  so  used.  And  it  is  insisted  that 
the  proof  of  this  fact  should  have  been  addressed  to  the  court, 
that  it  was  a  fact  to  be  decided  by  the  court,  and  exclusively 
within  their  province.  "We  conceive,  with  the  plaintiff's  counsel, 
that  the  authorities  cited  by  him  do  establish  that  it  is  the 
exclusive  right  of  the  court  to  decide  on  the  legality  and  com- 
petency of  all  testimony  which  is  to  be  read  or  given  to  the  jury. 

That  the  certificate  was  made  by  Jameson  was  not  contested. 
That  the  plaintiff  had  it  in  his  possession  at  and  about  the  time 
it  was  made  being  proved,  as  well  as  the  fact  that  the  plaintiff 
had  it  in  his  possession  a  short  time  before  the  sale,  and  had  used 
it  to  induce  others  to  purchase  the  bond,  would  not  alone  be 
evidence  that  it  was  used  to  induce  the  defendants  to  purchase. 
It  was,  therefore,  necessary  to  exhibit  some  other  proof,  by  which 
the  court  should  be  persuaded  to  the  conviction  that  it  ought  to 
go  to  the  jury  as  tending  to  maintain  the  ground  of  defense. 
That  proof  was  given  of  the  subsequent  possession  of  this  very 
paper  by  one  of  the  defendants.  We  think  this  weU  justified 
the  court  in  permitting  it  to  be  read.  The  subsequent  remarks 
of  the  court  were  full  of  good  sense,  and  were  of  the  most  favor- 
able character  towards  the  plaintiff's  case;  that  if  the  jury  were 


Sec.  2.]  semple  v.  gallery.  269 

not  satisfied  that  it  had  been  used  to  induce  the  defendants,  it 
would  not  be  evidence  in  the  case.  Though  fraud  is  not  to  be 
presumed,  it  is  usually  proved  by  circumstances.  It  is  most 
natural  to  suppose  from  the  circumstances  that  the  plaintiff 
obtained  the  certificate  on  the  14th  of  May,  1835,  of  the  quantity 
of  pine  timber  of  the  best  quality  to  the  acre  on  the  tract,  and 
had  used  it  before  the  sale  to  induce  others  to  purchase,  that  it 
was  a  principal  consideration  of  himself  and  others,  with  whom 
he  should  deal,  to  take  the  land  thus  loaded  with  a  most  valuable 
commodity.  This  may  properly  be  presumed.  It  is  not  pre- 
tended that  there  were  any  gold  or  silver  mines  on  it,  or  slate 
or  granite  quarries  to  work  upon  the  imagination  of  purchasers. 
The  defendants,  having  in  their  possession  this  paper,  did  come 
before  the  jury  with  strong  moral  evidence  that  they  received 
it  from  the  plaintiff  in  a  rightful  manner.  He  never  complained 
that  it  had  been  wrongfully  withdrawn.  It  was  most  natural 
to  suppose  it  would  be  delivered  over  by  him  to  the  purchasers, 
with  the  design  that  it  should  be  accredited.  But  if  it  was  not 
so  done,  he  had  the  liberty  to  call  upon  Wilson,  the  witness,  or 
introduce  any  testimony  to  render  it  doubtful  to  the  jury 
whether  it  had  been  so  employed. 


SEMPLE  V.  GALLERY.  ' 

184  Pennsylvania  8t.  95.     [1898.] 

Mr.  Justice  Fell.  The  court,  at  the  time  a  witness  was  called, 
heard  testimony  on  the  question  of  tlie  good  faith  of  an  assign- 
ment by  which  the  witness  had  divested  himself  of  all  interest 
in  the  controversy,  and  permitted  him  to  testify.  At  the  close 
of  the  testimony  the  court  was  requested  to  submit  to  the  jury 
the  same  question  on  which  it  had  passed,  and  to  instruct  them 
to  disregard  the  testimony  of  the  witness  if  they  found  that  the 
assignment  had  not  been  made  in  good  faith.  The  sixth  section 
of  the  Act  of  May  23,  1887,  P.  L.  158,  provides  that  a  person 
incompetent  to  testify  as  a  witness  because  of  interest  may  become 
fully  competent  "by  a  release  or  extinguishment,  in  goocl  faith, 
of  his  interest,  upon  which  good  faith  the  trial  judge  shall  pass 
as  a  preliminary  question. ' '     It  was  not  intended  by  this  provi- 


270  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV, 

siou  to  make  the  decision  of  the  court  subject  to  review  by  the 
jury,  and  to  change  the  long  established  rule  of  evidence  that 
it  is  the  province  of  the  court  finally  to  decide  preliminary  ques- 
tions of  fact  upon  which  the  admissibility  of  testimony  depends. 
Whether  a  release  has  been  executed  in  good  faith  is  a  question 
preliminary  to  the  question  of  competency,  and  as  such  it  is 
decided  as  a  preliminary  question,  but  its  decision  is  not  pre- 
liminary merely  to  a  second  decision  by  the  jury.  The  compe- 
tency of  a  witness,  as  to  questions  of  both  fact  and  law  is  to  be 
determined  by  the  court.^ 


WILSON  V.  UNITED  STATES. 

162  V.  8.  613.     [1895.] 

]\Ir.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  court.     *     *     * 

In  the  case  at  bar  defendant  was  not  put  under  oath,  and  made 
no  objection  to  answering  the  questions  propounded.  The  com- 
missioner testified  that  the  statement  was  made  freely  and  volun- 
tarily, and  no  evidence  to  the  contrary  was  adduced.  Nor  did 
defendant,  when  testifying  on  his  own  behalf,  testify  to  the 
contrary.  He  testified  merely  that  the  commissioner  examined 
him  "without  giving  him  the  benefit  of  counsel  or  warning  him 
of  his  right  of  being  represented  by  counsel,  or  in  any  way 
informing  him  of  his  right  to  be  thus  represented."  He  did  not 
testify  that  he  did  not  know  that  he  had  a  right  to  refuse  to 
answer  the  questions,  or  that,  if  he  had  known  it,  he  would  not 
have  answered.  His  answers  were  explanations,  and  he  appeared 
not  to  be  unwilling  to  avail  himself  of  that  mode  of  averting 
suspicion.  It  is  true  that,  while  he  was  not  sworn,  he  made  the 
statement  before  a  commissioner  who  was  investigating  a  charge 
against  him,  as  he  was  informed;  he  was  in  custody  but  not  in 
irons ;  there  had  been  threats  of  mobbing  him  in  the  night  before 
the  examination ;  he  did  not  have  the  aid  of  counsel ;  and  he 

1  And     so     on     the     question     of  to  a  party  as  admissions.     Jones  v. 

Agency   or    Conspiracy,    where    dec-  Hurlburt,  39  Barbour  (N.  Y.)  403; 

larations  of  the  alleged  agent  or  co-  but  see   Swearingen  v.  Leach,  7   B. 

conspirator  are  sought  to  be  imputed  Monroe,  285. 


H 


Sec.  2.]  burton  v.  state.  "  271 

was  not  warned  that  the  statement  might  be  used  against  him  or 
advised  that  he  need  not  answer.  These  were  matters  which 
went  to  the  weight  or  credibility  of  what  he  said  of  an  incrim- 
inating character,  but  as  he  was  not  confessing  guilt  but  the 
contrary,  we  think  that,  under  all  the  circumstances  disclosed, 
they  were  not  of  themselves  sufficient  to  require  his  answers  to 
be  excluded  on  the  ground  of  being  involuntary  as  matter  of 
law. 

When  there  is  a  conflict  of  evidence  as  to  whether  a  confession 
is  or  is  not  voluntary,  if  the  court  decides  that  it  is  admissible, 
the  question  may  be  left  to  the  jury  with  the  direction  that  they 
should  reject  the  confession  if  upon  the  whole  evidence  they  are 
satisfied  it  was  not  the  voluntary  act  of  the  defendant.^  Com- 
monwealth V.  Preece,  140  Mass.  276 ;  People  v.  Howes,  81  Mich. 
396 ;  Thomas  v.  State,  84  Georgia,  613 ;  Hardy  v.  United  States, 
3  Dist.  Col.  App.  35.  The  question  here,  however,  is  simply 
upon  the  admissibility  of  the  statement,  and  we  are  not  pre- 
pared to  hold  that  there  was  error  in  its  admission  in  view  of 
its  nature  and  the  evidence  of  its  voluntary  character;  the  ab- 
sence of  any  threat,  compulsion  or  inducement ;  or  assertion  or 
indication  of  fear ;  or  even  of  such  influence  as  the  administration 
of  an  oath  has  been  supposed  to  exert. 

Judgment  affirmed. 


BURTON  V.  STATE. 

107  Alabama,  108.     [1894.] 

On  the  trial  of  an  indictment  for  murder,  where  the  defend- 
ant's confession  had  been  admitted,  the  court  gave  the  following 
charge:     (28)   "Where   confessions   by  the   defendant  are   ad- 

1  Morton,  C.  J.,  in  Commonwealth  testimony,    the    humane   practice    in 

V,   Preece,    140   Mass.   276     *     »     *  this  Commonwealth  is  for  the  judge, 

Where  a  confession  is  offered  in  evi-  if  he  decides  that  it  is  admissible,  to 

denee,  the  question  whether  it  is  vol-  instruct  the  jury  that  they  may  eon- 

untary  is  to  be  decided  primarily  by  sider  all  the  evidence,  and  that  they 

the  presiding  justice.    If  he  is  satis-  should    exclude    the    confession,    if 

fied  that  it  is  voluntary,  it  is  admis-  upon  the  whole  evidence  in  the  case, 

sible;    otherwise    it    should    be    ex-  they  are  satisfied  that  it  was  not  the 

eluded.     Where  there   is   conflicting  voluntary  act  of  the  defendant. 


272  CONDUCT    OF   THE   TRIAL,  [ChAP.  IV. 

mitted  in  evidence  by  the  court,  if  the  jury  believe  the  confessions 
are  true,  they  can  not  disregard  them,  although  they  may  believe 
that  they  were  not  voluntarily  made,"  The  court  refused  the 
following  instructions  requested  by  the  defendant:  (67)  "The 
court  charges  the  jury  that  they  are  the  final  judges  as  to  whether 
the  confession  as  testified  to  by  Lawrence  P.  Evans,  the  State's 
witness,  was  voluntary  or  not."  (68)  "The  court  charges  the 
jury  that  in  passing  on  the  credibility  of  the  statement  made  by 
the  defendant,  as  testified  to  by  the  witness  for  the  State,  they 
may  take  into  consideration  the  circumstances  under  which 
they  were  made,  and  if  the  jury  believe  from  the  evidence  before 
them  that  such  statements  were  not  freely,  voluntarily  and  in- 
telligently made,  then  the  jury  should  reject  them  as  wanting  in 
credibility,  and  as  not  entitled  to  w^eight,  in  passing  on  the  guilt 
or  innocence  of  the  defendant."^ 

Coleman,  J.  ( after  holding  that  the  confessions  were  properly 
received).     *     *     * 

Charge  28  given  at  the  instance  of  the  prosecution  and  charges 
67  and  68,  refused  to  the  defendant,  will  be  considered  in  part 
together.  These  relate  to  the  province  and  power  of  the  jury 
as  to  confessions  after  they  have  been  admitted  by  the  court. 
It  is  the  established  law  of  this  State,  and  that  which  prevails 
almost  universally,  that  confessions  of  a  defendant  are  not  admis- 
sible against  him,  in  a  criminal  prosecution,  unless  voluntarily 
made.  Whether  voluntarily  made  or  not,  we  hold  is  a  question 
of  law  to  be  determined  by  the  court  from  the  facts,  as  a  condi- 
tion precedent  to  their  admission.  Bonner  v.  State,  55  Ala.  242, 
and  authorities ;  Young  v.  The  State,  68  Ala.  569.  Having  been 
declared  competent  and  admissible,  they  are  before  the  jury  for 
consideration.  The  jury  have  no  authority  to  reject  them  as 
incompetent.  But  the  jury  are  the  sole  judges  of  the  truth 
and  weight  to  be  given  confessions,  as  they  are  of  any  other 
fact.  In  weighing  the  confessions,  the  jury  must  take  into  con- 
sideration all  the  circumstances  surrounding  them,  and  under 
which  they  were  made,  including  those  under  which  the  court 
declared  as  matter  of  law  they  were  voluntary.  In  weighing 
confessions,  the  jury  necessarily  consider  those  facts  upon  which 
their  admissibility,  as  having  been  voluntarily  made,  depends. 

1  The  statement  has  been  abridged. 


H 


Sec.  2.]  burton  v.  state,  273 

While  there  is  no  power  in  the  jury  to  reject  the  confessions 
as  being  incompetent,  there  is  no  power  in  the  court  to  control 
the  jury  in  the  weight  to  be  given  to  facts.  The  jury  may, 
therefore,  in  the  exercise  of  their  authority  and  within  their 
province,  determine  that  the  confessions  are  untrue,  or  not 
entitled  to  any  weight,  upon  tlie  grounds  that  they  were  not 
voluntarily  made.  The  court  passes  upon  the  facts  merely  for 
the  purpose  of  determining  their  competency  and  admissibility. 
The  jury  pass  upon  the  same  facts,  and  in  connection  with  other 
facts,  if  there  are  other  facts,  in  determining  whether  the  con- 
fessions are  true  and  entitled  to  any  and  how  much  weight. 
The  court  and  jury  each  have  a  well  defined  and  separate  prov- 
ince. Young's  Case,  supra.  It  follows,  that  although  the  jury 
may  come  to  the  conclusion  that  the  confessions  were  not  volun- 
tary, yet  if  from  extrinsic  evidence  or  from  their  character  and 
the  circumstances  the  jury  are  satisfied  that  they  are  true  the 
jury  should  act  upon  them.  Being  competent  and  the  jury  being 
satisfied  beyond  a  reasonable  doubt  of  their  truth,  the  jury  may 
very  properly  convict  on  such  evidence.  There  was  no  error 
in  giving  charge  28.  The  statement  in  the  opinion  of  the  case 
of  Goodwin  v.  The  State,  supra,  that  it  is  the  "duty"  of  the 
jury  to  discard  and  reject  the  confessions  altogether  if  they  are 
of  opinion  that  the  confessions  were  not  voluntarily  made,  al- 
though they  may  believe  them  to  be  true,  is  herein  modified  in  so 
far  as  it  conflicts  with  the  opinion  in  the  present  case. 

Charge  67  requested  by  defendant  is  not  full  enough.  The 
jury  consider  whether  confessions  were  voluntary  in  passing 
upon  their  weight,  but  the  jury  is  not  authorized  to  determine 
their  admissibility.     The  charge  was  calculated  to  mislead. 

Charge  67  was  properly  refused,  as  invading  the  province  of 
the  jury.  It  required  the  jury  to  reject  the  confessions  abso- 
lutely, if  in  their  opinion  they  were  not  voluntarily  made.  It 
was  their  duty  to  consider  them  and  their  province  to  give  them 
such  weight  as  they  saw  proper.^ 

2 ' '  Evidence  was  also  given  of  her  wife  in  the  absence  of  the  prisoner 

declarations    in    the    prisoner's    ab-  ought  not  to  have  been  admitted  in 

sence,  after  she  was  confined  to  her  evidence,  as  it  was  not  proved  that 

bed,  all  of  which  tended  to  show  the  she  considered  herself  at  the  time  as 

circumstances    of    violence    he    had  a  dying  person;  the  evidence  not  be- 

oommitted    upon    her.      It    was    ob-  ing  express  on  that  head;  but  that 

jected,  that  the  declarations  of  the  if   the   evidence   were   admissible,   it 
H.  T.  p.— 18 


274 


CONDUCT    OP   THE   TRIAL. 

STATE  V.  HYDE. 


[Chap.  IV. 


234  Missouri,  200.      [1910.] 

On  the  trial  of  an  indictment  for  the  murder  of  Col.  Thomas 
H.  Swope  by  poison,  in  order  to  show  design  and  motive,  the 
State  introduced  a  large  amount  of  evidence,  tending,  as  it  was 
claimed,  to  show  attempts  on  the  part  of  the  defendant  to  poison 
other  members  of  the  Swope  family.  Defendant  was  convicted 
and  appealed.  1 

Ferriss,  j.     *     *     * 

The  claim  that  defendant  attempted  to  poison  Sarah  Swope. 
by  handing  to  Stella  a  capsule  with  a  request  that  she  ask  the 
nurse  to  give  it  to  Sarah,  and  further  claim  that  he  inoculated 
them  both  with  typhoid  by  giving  them  candy,  are  neither  one 
supported  by  any  evidence  worthy  of  consideration.  According 
to  the  expert  testimony  in  this  case,  the  percentage  of  fatalities 
in  typhoid  fever  does  not  exceed  two  per  cent — one  in  fifty.  The 
defendant,  knoAving  this  fact  as  a  physician,  would  not  be  likely 
to  select  typhoid  fever  as  a  direct  instrument  of  murder.  To 
meet  this  situation,  the  State  advances  the  theory  or  suggestion 


ought  to  have  been  left  to  the  jury 
to  consider  whether  the  wife  were 
at  the  time  conscious  of  approaching 
death.  Objection  was  also  made, 
that  these  being  declarations  of  a 
wife  against  her  husband  were  not 
on  that  account  evidence.  The 
Court  was  of  opinion,  that  the  rea- 
son of  the  rule  that  a  wife  shall  not 
be  admitted  to  give  evidence  against 
her  husband  did  not  apply  to  this 
case.  And  upon  the  other  point,  that 
evidence  of  the  state  of  the  wife's 
health,  at  the  time  the  declarations 
were  made,  was  sufficient  to  show 
that  she  was  actually  dying;  and 
that  it  was  to  be  inferred  from  it, 
that  she  was  conscious  of  her  situa- 
tion :  and  no  particular  direction  was 
given  to  the  jury  on  the  subject. 
The  jury  having  found  the  prisoner 
guilty,  these  points  were  referred  to 
the  judges;  who  at  a  conference  in 


Easter  term,  1790,  all  agreed  that 
it  ought  not  to  be  left  to  the  jury  to 
say,  whether  the  deceased  thought 
she  was  dying  or  not;  for  that  must 
be  decided  by  the  judge  before  he 
receives  the  evidence.  And  if  a 
dying  person  either  declare  that  he 
knows  his  danger,  or  it  is  reason- 
ably to  be  inferred  from  the  wound 
or  state  of  illness  that  he  was  sensi- 
ble of  his  danger,  the  declarations 
are  good  evidence.  But  as  to  the 
declarations  themselves  in  this  case, 
all  the  judges,  except  two,  thought 
that  there  was  no  foundation  for 
supposing  that  the  deceased  con- 
sidered herself  in  any  danger  at 
all."  Eex  V.  John,  1  East  P.  C. 
357. 

See  also  State  v.  Brennan,  164 
Mo.  487;  State  v.  Monich,  74  N.  J. 
L.  522. 

1  Statement  has  been  abridged. 


i 


Sec.  2.]  state  v.  hyde.  275 

that  "it  would  serve  as  a  mask  and  cover  for  deaths  that  might 
be  otherwise  produced"  (State's  brief)  ;  in  other  words,  afford 
an  opportunity  to  poison  the  typhoid  patient.  This  theory  of 
the  State  concerning  the  germ  inoculation  is  built  upon  a  series 
of  inferences  upon  inferences,  without  any  substantial  underly- 
ing basis  of  fact. 

We  are  of  opinion  that  none  of  the  testimony  of  other  alleged 
crimes  should  have  been  given  to  the  jury.  Having  been  ad- 
mitted, it  should  have  been  withdrawn  from  their  consideration. 
We  also  think  that  the  better  practice  would  be  that  the  court 
should,  as  a  preliminary  matter,  when  the  State  proposes  to  offer 
evidence  of  other  crimes,  either  hear  the  evidence  or  satisfy 
itself  as  to  its  character  and  scope  by  inquiry  of  the  prosecuting 
attorney,  and  determine  whether  there  is  sufficient  evidence  of 
the  other  alleged  crime  to  justify  its  submission  to  the  jury. 
We  do  not  mean  to  say  that  the  evidence  upon  such  preliminary 
hearing  must  prove  beyond  a  reasonable  doubt  that  the  other 
crime  had  been  committed,  but  that  there  should  appear  sub- 
stantial evidence  sufficient  to  take  a  case  to  a  jury.  A  satisfac- 
tory precedent  is  found  in  the  case  of  Commonwealth  v.  Robinson, 
146  Mass.  571,2  where  such  preliminary  hearing  was  had.  As  to 
the  degrees  of  proof  on  such  hearing  the  court  said  (1.  c.  581)  : 
"Where,  in  a  case  like  the  present,  the  admissibility  of  testimony 

2  Allen,  J.,  in  Commonwealth  v.  of  the  jury  in  weighing  the  whole 
Eobinson,  146  Mass.  571.  *  *  *  evidence.  They  must  stiU  be  satis- 
"But  where,  in  a  case  like  the  fied,  in  a  criminal  case,  upon  the 
present,  the  admissibility  of  the  tes-  whole  evidence,  beyond  a  reasonable 
timony  depends  upon  the  determina-  doubt.  Ordinarily,  questions  of  fact 
tion  of  some  prior  fact  by  the  Court,  are  exclusively  for  the  jury,  and 
there  is  no  rule  of  law  that,  in  order  questions  of  law  for  the  Court.  But 
to  render  the  testimony  admissible,  when,  in  order  to  pass  upon  the  ad- 
such  prior  fact  must  be  established  missibility  of  evidence,  the  deter- 
by  a  weight  of  evidence  which  wHl  mination  of  a  preliminary  question 
amount  to  a  demonstration,  and  shut  of  fact  is  necessary,  the  Court  in  the 
out  all  doubt  or  question  of  its  ex-  due  and  orderly  course  of  the  trial 
istence.  It  is  only  necessary  that  must  necessarily  determine  it,  as  far 
there  should  be  so  much  evidence  as  as  it  is  necessary  for  that  purpose, 
to  make  it  proper  to  submit  the  and  usually  without  the  assistance, 
whole  evidence  to  the  jury.  The  at  that  stage,  of  the  jury.  If,  un- 
fact  of  the  admission  of  the  evi-  der  such  circumstances,  testimony  is 
dence  by  the  judge  does  not  in  a  admitted  against  a  party's  objec- 
legal  sense  give  it  any  greater  weight  tion,  it  may  often  happen  that  he 
with  the  jury;  it  does  not  affect  the  may  still  ask  the  jury  to  disregard 
burden  of  proof,  or  change  the  duty  it." 


276  CONDUCT    OF   THE   TRIAL.  [  ChAP.  IV. 

depends  upon  the  determination  of  some  prior  fact  by  the  court, 
there  is  no  rule  of  law  that,  in  order  to  render  the  testimony- 
admissible,  such  prior  fact  must  be  established  by  a  weight  of 
evidence  which  will  amount  to  a  demonstration,  and  shut  out  all 
doubt  or  question  of  its  existence.  It  is  only  necessary  that  there 
should  be  so  much  evidence  as  to  make  it  proper  to  submit  the 
whole  evidence  to  the  jury. ' ' 

In  a  case  like  this,  involving  a  large  amount  of  testimony 
concerning  other  crimes  which  would  occupy  days  in  presenta- 
tion, it  would  be  impracticable  to  give  a  preliminary  hearing  to 
all  the  details.  In  such  case  the  court  may  properly  be  guided 
by  the  offer  of  proof  and  by  such  testimony  as  can  be  con- 
veniently presented ;  enough  to  satisfy  the  court  that  the  evidence 
is  relevant  and  of  sufficient  weight  to  authorize  its  submission 
to  the  jury.  The  great  danger  that  evidence  of  other  crimes, 
even  if  it  fails  to  establish  them,  and  even  if  it  is  by  an  instruc- 
tion withdrawn  from  the  jury,  will  prejudice  the  jury  against 
the  defendant  and  obscure  their  judgment  upon  the  real  issues 
before  them,  suggests  the  propriety  of  determining  in  advance 
of  its  introduction  that  such  testimony  is  competent. 


(b)   Offers  and  Objections. 
CHICAGO  RY.  CO.  v.  CARROLL. 

206  Illinois,  318.      [1903.] 

Mr.  Justice  Ricks.     *     *     * 

"When  this  witness  retired  from  the  stand,  appellee  announced 
that  he  rested  his  case.  Appellant's  attorney  then  said:  "We 
desire  to  offer  evidence,  your  honor,  on  the  question  of  inspec- 
tion of  the  cars,  and  so  forth. ' '  The  court  replied :  ' '  Very  well ; 
I  won't  receive  any  evidence  except  as  to  the  ownership  of  this 
line  at  tliis  stage."  Exception  was  taken,  and  it  is  now  urged 
that,  inasmuch  as  appellee  was  allowed  to  show  the  inscription 
on  the  cars,  it  tended  to  show  ownership,  and  that  appellant 
should  have  been  allowed  to  show  that  it  did  inspect  its  cars ;  that 
in  the  absence  of  proof  of  ownership  appellant  was  not  required 
to  prove  anything,  and  that  as  there  was  no  evidence,  until  the 


Sec.  2.]  Chicago  ry.  co,  v.  carroll.  277 

testimony  of  this  son,  of  ownership,  the  court  should  have  opened 
the  case  and  allowed  proof  upon  the  question  of  inspection.  It 
may  first  be  said,  there  was  evidence  of  ownership  and  operation 
of  the  car  by  appellant  already  in  the  record,  and  it  would  be  a 
dangerous  rule  of  practice  to  sustain  error  upon  an  assignment 
such  as  this.  Appellant,  in  fact,  offered  no  evidence  upon  the 
matter.  No  witness  was  put  upon  the  stand;  no  question  was 
asked.  Nothing  was  done  except  a  mere  conversation  or  talk 
had  between  counsel  for  appellant  and  the  court.  Such  procedure 
as  that  does  not  amount  to  an  offer  of  evidence,  and  the  remarks 
of  the  court  did  not  amount  to  a  refusal  to  admit  evidence.  There 
can  be  no  refusal  to  admit  that  which  has  not  been  offered,  and 
counsel  cannot,  by  engaging  in  a  mere  conversation  with  the 
court,  although  it  may  relate  to  the  procedure,  by  merely  stating 
what  he  desires  to  do,  get  a  ruling  from  the  court  upon  which  he 
can  predicate  error.  If  appellant  desired  to  make  the  contention 
it  now  makes,  it  should  have  at  least  put  a  witness  upon  the  stand 
and  proceeded  far  enough  that  the  question  relative  to  the  point 
it  is  now  said  it  was  desired  to  offer  evidence  upon  was  reached, 
and  then  put  the  ([uestion  and  allow  the  court  to  rule  upon  it, 
and  then  offer  what  was  expected  to  be  proved  by  the  wit- 
ness, if  he  was  not  allowed  to  answer  the  question  asked. 
It  was  not  stated  to  the  court  that  appellant  did  inspect  the  cars 
or  could  prove  that  the  cars  had  been  regularly  inspected  or 
recently  inspected,  or  that  the  inspection  that  was  made  was  an 
examination  of  the  trolley-pole  or  its  attachments,  and  to  now 
hold  that  the  case  should  be  reversed  upon  the  mere  statement 
of  counsel  that  he  desired  to  oft'er  evidence  upon  the  question  of 
the  "inspection  of  the  cars,  and  so  forth,"  would,  as  we  think, 
be  setting  a  dangerous  precedent,  and  one  that  would  tend  to 
irregularity  in  such  matters.  Stevens  v.  Newman,  68  111.  App. 
549;  Beard  v.  Lofton,  102  Ind.  408;  Morris  v.  Morris,  119  id. 
341 ;  Ralston  v.  Moore,  105  id.  243  ;  Smith  v.  Gorham,  119  id.  436 ; 
City  of  Evansville  v.  Thaeker,  2  Ind.  App.  370 ;  Darnell  v.  Sallee, 
7  id.  581 ;  First  Nat.  Bank  v.  Stanley,  4  id.  213;  Lewis  v.  State, 
id.  504;  Huggins  v.  Hughes,  11  id.  465 ;  8  Ency.  of  PI.  &  Pr.  236. 


278  CONDUCT    OP   THE   TRIAL.  [ChAP.  IV. 

GRIFFIN  V.  HENDERSON. 

117  Georgia,  382.     [1903.] 

Lamar,  J.  The  eaveatrix,  among  other  grounds,  objected  to 
the  probate  of  her  mother's  will,  for  the  reason  that  the  testatrix 
had  made  the  will  under  a  mistake  of  fact  as  to  the.  conduct  of 
the  daughter,  who  was  her  sole  heir  at  law.  Civil  Code,  §  3262. 
No  demurrer  or  exception  was  tiled  to  this  ground  of  the  caveat. 
One  of  the  grounds  of  alleged  error  was  that  the  court  refused 
to  permit  the  eaveatrix  to  testify  as  a  witness  to  any  communica- 
tions made  to  her  by  her  mother,  or  conversations  between  them. 
' '  The  court  so  ruling,  no  questions  were  propounded  to  the  wit- 
ness (eaveatrix),  who  would  have  testified  that  Mrs.  A.  C.  Brown 
treated  her  entirely  different  after  her  marriage  to  her  husband, 
Mr.  C.  M.  Griffin,  than  she  had  done  prior  to  the  marriage,"  and 
to  other  facts  which  relate  to  the  question  of  a  mistake  of  fact. 
*  *  *  It  is  expressly  stated  that  no  questions  were  pro- 
pounded to  the  witness;  and  while  the  motion  says  what  she 
would  have  testified,  it  does  not  appear  that  the  court  was  in- 
formed thereof  at  the  time  he  excluded  her;  and  therefore  we 
are  not  permitted  to  consider  this  assignment  of  error.  No  mat- 
ter how  competent  a  witness  might  be,  a  court  will  not  grant  a 
new  trial  merely  because  he  was  not  allowed  to  testify.  It  must 
appear  that  the  excluded  testimony  was  material ;  and  the  almost 
universal  rule  of  practice  is  that  what  that  material  testimony 
was  must  be  expressly  called  to  the  attention  of  the  trial  court 
at  the  time  of  its  exclusion.  Bigby  v.  Warnoek,  115  Ga.  386 ; 
Southern  Mutual  Ins.  Co.  v.  Hudson,  113  Ga.  438;  Freeman  v. 
Mencken,  115  Ga.  1018.  In  a  few  instances  there  may  be  an 
exception — as  in  cross-examinations,  where  the  examining  counsel 
may  not  know  what  the  answer  will  be,  or  is  exercising  a  right 
to  test  the  witness;  but  ordinarily  the  exclusion  of  oral  testi- 
mony can  be  made  available  as  error  only  by  asking  some  perti- 
nent question,  and,  if  an  objection  is  sustained,  informing  the 
court  at  the  time  what  the  answer  will  be,  so  that  he  can  then 
determine  whether  the  fact  is  or  is  not  material.  It  will  not  do 
to  state  thereafter  what  the  witness  would  have  answered.  The 
error,  if  any,  must  have  been  committed  on  the  trial ;  and  the 
ruling  must  have  been  made,  not  on  a  question  only,  but  in  the 
light  of  the  facts  about  which  the  witness  would  have  testified. 


1 


Sec.  2,]  geiffin  v.  Henderson.  279 

Where  a  question  is  asked,  the  answer  excluded,  and  no  state- 
ment made  to  the  judge  as  to  what  the  witness  would  have  sworn, 
there  is  nothing  before  the  court.  It  is  impossible  for  the  judge 
on  the  motion  for  a  new  trial,  or  for  this  court,  on  a  bill  of 
exceptions,  to  say  whether  the  complaining  party  would  have 
been  benefited  or  injured  by  the  answer.  The  witness  may  not 
have  known  anything  of  the  subject  inquired  about;  and  if  a 
new  trial  should  be  granted  because  the  answer  was  excluded,  it 
might  happen  that  on  the  second  trial  the  question  would  be  again 
propounded,  allowed,  and  the  witness  give  hearsay,  inadmissible, 
or  irrelevant  testimony,  or  the  answer  might  be  harmful  instead 
of  helpful,  or  the  witness  might  reply,  "I  do  not  know,"  with 
the  result  that  the  time  and  money  of  the  parties  and  the  country 
has  been  wasted  for  so  inconsequent  a  conclusion.  That  this  is 
not  unlikely  to  occur  is  shown  by  the  experience  of  all  practicing 
lawyers,  who  have  often  seen  a  long  heated  argument  as  to  the 
right  to  ask  a  question  followed  by  the  laughter  of  all  bystanders 
when  the  court  held  it  competent,  and  the  witness  replied  that 
he  knew  nothing  about  the  matter.  Parties  can  often  agree  in 
the  presence  of  the  court  as  to  what  the  witness  would  testify,  or, 
if  not,  the  witness,  or  examining  attorney,  can  state  what  the 
answer  would  be ;  and  where  the  subject-matter  is  important,  the 
judge  may,  in  his  discretion,  retire  the  jury  until  its  admissibil- 
ity has  been  settled.  We  are  well  aware  that  the  rule  may  be 
perverted  into  a  means  of  getting  inadmissible  evidence  before 
the  jury,  or  by  forcing  their  constant  withdrawal,  retarding  the 
trial.  The  courts  must  rely  upon  the  good  faith  of  counsel  not 
to  bring  about  such  a  result.  But  it  would  never  do  to  grant 
a  new  trial  until  it  appeared,  not  only  that  the  question  was 
proper  but  that  the  answer  was  material  and  would  have  been 
of  benefit  to  the  complaining  party.  Where  a  witness  is  not 
allowed  to  answer  a  question,  he  is,  as  to  that  particular  matter, 
as  though  he  were  absent;  and  the  rule  requiring  a  showing  as 
to  what  an  al^sent  witness  would  testify,  and  the  materiality  of 
his  testimony,  stands  on  the  same  principle  as  a  showing  required 
in  rulings  when  the  court  will  not  admit  evidence.  See  Civil 
Code,  §  5129 ;  Thompson  v.  State,  55  Ga.  47.  While  the  rule  as 
to  assigning  error  on  the  exclusion  of  testimony  is  not  without 
its  exceptions,  the  practice  in  other  jurisdictions  is  substantially 
that  in  this  state.    Railroad  v.  Stonecipher,  95  Tenn.  311 ;  Omaha 


280 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


Ins.  Co.  V.  Berg,  44  Neb.  522  (3)  ;  and  see  many  cases  cited  in 
2  Cyc.  L.  &  P.  697.1 


WILLIAMS  V.  WILCOX. 
8  Adolphus  &  Ellis,  314.      [1838.] 

On  a  rule  nisi  for  a  new  trial. 

Lord  Denman,  C.  J.    *     *     * 

A  single  point,  however,  still  remains  to  be  mentioned,  on  which 
the  defendants  claim  a  new  trial.  In  order  to  establish  the  an- 
tiquity of  the  weir,  the  plaintiff  tendered  in  evidence  what  pur- 
ported to  be  a  copy  of  an  ancient  grant  found  in  a  chartulary  of 
Ilaghmon  Abbey ;  the  single  objection  now  relied  on  against  its 
reception  is,  that  no  search  was  proved  to  have  been  made  for 
the  original.  The  note  of  the  learned  judge  is  very  specific  as 
to  the  objection  made  at  the  trial,  and  his  memory  clear  as  to 
what  then  occurred ;  but  he  has  no  minute  or  recollection  of  this 
point  having  been  pressed;  and  it  is  an  objection  so  much  upon 
the  surface,  that,  if  brought  clearly  to  his  notice,  it  is  scarcely 
conceivable  but  that  it  must  have  prevailed ;  indeed  we  think  that 
it  must  have  been  acquiesced  in  by  the  counsel  on  the  other  side. 
We  do  not  doubt  that  it  was  in  fact  made ;  but,  as  the  whole  class 
of  that  evidence,  of  which  this  document  formed  a  single  item, 
was  also  objected  to,  and  the  attention  of  the  learned  judge  was 
naturally  directed  to  that  more  general  and  important  objection, 
it  is  probable  that  this  was  not  so  made  as  to  attract  his  notice. 
In  all  cases,  and  especially  in  one  so  circumstanced  as  this,  it  is 
the  business  of  the  counsel  to  take  care  that  the  judge 's  attention 
is  drawn  to  any  objection  on  which  he  intends  afterward  to  rely. 
Justice  requires  this,  not  so  much  to  the  judge,  as  to  the  oppo- 
site party,  who  may  be  willing,  as  in  the  present  case  would 
probably  have  been  done,  rather  to  waive  the  benefit  of  the  evi- 
dence than  put  his  verdict  in  peril  on  the  issue  of  the  objection. 
If,  by  inadvertence,  this  was  not  done  at  the  trial,  we  think  we 
ought  not,  either  upon  general  principles  or  with  a  view  to  the 


1  And  so  in  Jackson  v.  Hardin,  83 
Mo.  175. 


Sec.  2.]  levin  v.  russell.  281 

particular  circumstances  of  this  case,  to  allow  the  objection  now 
to  prevail.  The  admitted  document  was  but  one  of  many  to 
prove  what  in  the  end  was  unquestionable  and  unquestioned,  the 
very  great  antiquity  of  the  weir;  its  admission,  therefore,  occa- 
sioned no  injustice ;  its  rejection  could  not  and  ought  not  to  have 
varied  the  verdict. 
The  rule,  therefore,  on  all  points  will  be  discharged. 


LEVIN  V.  RUSSELL. 

42  New  York,  251.      [1870.] 

Grover,  j.     *     *     * 

The  omission  of  the  plaintiff  to  file  a  statement  of  his  interest 
in  the  property,  the  mortgage,  as  required  by  statute,  to  preserve 
his  lien  against  the  creditors  of  the  mortgagor,  was  obviated  by 
the  proof  showing  that  the  plaintiff  took  possession  of  the  prop- 
erty by  virtue  of  his  mortgage  in  the  lifetime  of  the  intestate 
and  before  any  lien  of  any  creditor  had  attached  and  that  he 
retained  such  possession  until  the  property  was  taken  from  him 
by  the  defendant.  The  testimony  of  the  plaintiff  as  to  the  trans- 
action between  him  and  the  intestate  was  not  competent  evidence 
against  the  defendant,  and  had  such  testimony  been  properly  ob- 
jected and  excepted  to,  its  admission  would  have  been  erroneous ; 
but  there  was  no  ground  assigned  for  the  objection.  It  is  the  well 
settled  law  that  objections  to  testimony  without  assigning  any 
ground  therefor  will  be  disregarded  unless  it  clearly  appears  that 
the  objection,  if  properly  made,  would  have  been  decisive  of  the 
case,  and  could  not  have  been  obviated.  It  does  not  so  appear 
in' the  present  case.  After  the  plaintiff  had  been  examined  and 
cross-examined  by  the  appellant  in  regard  to  such  transactions, 
the  counsel  for  the  appellant  moved  to  strike  out  the  testimony. 
This  motion  was  denied  by  the  referee,  to  which  an  exception  was 
taken.  It  is  entirely  clear  that  a  party  who  has  sat  by  during 
the  reception  of  incompetent  evidence  without  properly  object- 
ing thereto,  and  thus  taken  his  chance  of  advantage  to  be  derived 
by  him  therefrom,  has  not,  when  he  finds  such  evidence  preju- 
dicial to  him,  a  legal  right  to  require  the  same  to  be  stricken  out. 
The  denial  of  the  motion  was  not,  therefore,  any  ground  of  excep- 


282  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

tioii.^  I  have  examined  the  other  exceptions  to  the  rulings  of  the 
referee  upon  the  competency  of  evidence  and  think  none  of  them 
well  taken.  The  judgment  appealed  from  must  be  affirmed  with 
costs. 


NOONAN  V.  CALEDONIA  MINING  CO. 

121  U.  S.  393.      [1886.] 

Mr.  Justice  Field.     *     *     * 

The  objection  to  the  introduction  of  the  articles  of  incorpora- 
tion at  the  trial  was  that  they  were  ' '  immaterial,  irrelevant,  and 
incompetent"  evidence.  The  specific  objection  now  urged,  that 
they  were  not  sufficiently  authenticated  to  be  admitted  in  evi- 
dence, and  that  the  certificates  were  made  by  deputy  officers,  is 
one  which  the  general  objection  does  not  include.  Had  it  been 
taken  at  the  trial  and  deemed  tenable,  it  might  have  been  obviated 
by  other  proof  of  the  corporate  existence  of  the  plaintiff  or  b}^ 
new  certificates  to  the  articles  of  incorporation.  The  rule  is 
universal,  that  where  an  objection  is  so  general  as  not  to  indicate 
the  specific  grounds  upon  which  it  is  made,  it  is  unavailing  on 
appeal,  unless  it  be  of  such  a  character  that  it  could  not  have 
been  obviated  at  the  trial.  The  authorities  on  this  point  are  all 
one  way.  Objections  to  the  admission  of  evidence  must  be  of 
such  a  specific  character  as  to  indicate  distinctly  the  grounds 
upon  which  the  party  relies,  so  as  to  give  the  other  side  full 
opportunity  to  obviate  them  at  the  time,  if  under  any  circum- 
stances that  can  be  done.  United  States  v.  McMasters,  4  Wall. 
680 ;  Burton  v.  Driggs,  20  AVall.  125 ;  Wood  v.  Weimar,  104  U. 
S.  786,  795.1 

1  The  motion  to  strike  out  is  to  be  objection  is  sufficient  to  preserve  the 

used  where   an   improper  answer   is  question  where  the  evidence  is  wholly 

given  to   a  proper  question.      State  inadmissible  and  the  objection  could 

V.  Sykes,  191  Mo.  62.  not  have  been  obviated.     Bailey  v. 

1  It  has  been  held  that  a  general  Kansas  City,  189  Mo.  503. 


Sec.  2.]  eschbach  v.  hurtt.  283 

ESCHBACH  V.  HURTT. 

»  47  Maryland,  61.     [1877.] 

Miller,  J.  This  is  an  action  for  malicious  prosecution,  brought 
by  the  appellee  against  the  appellant.     *     *     * 

The  question  which  the  defendant's  counsel  insist  that  this 
exception  presents,  and  which  they  have  argued  with  great 
ability  is,  whether  under  the  declaration  in  this  case,  and  the 
issue  joined  on  the  plea  of  not  guilty,  evidence  of  the  bad  repu- 
tation of  the  plaintiff  for  honesty  and  integrity  is  admissible, 
either  as  tending  to  show  probable  cause,  or  in  mitigation  of 
damages.  The  exact  question  thus  discussed  has  never  been 
expressly  adjudicated  in  this  State,  and  it  must  be  conceded  that 
elsewhere  there  is  much  conflict  of  authority  upon  the  subject. 
But  we  do  not  propose  to  review  the  numerous  cases  that  have 
been  cited  in  argument,  nor  to  express  any  opinion  as  to  the 
admissibility  of  such  evidence,  because  in  our  judgment  that 
question  is  not  presented  by  the  ruling  of  the  Superior  Court, 
to  which  the  defendant  excepted.  We  may  observe,  however, 
that  the  present  state  of  the  English  adjudications  on  this  sub- 
ject is  thus  laid  down  in  Addison  on  Torts  (4th  Eng.  Ed.),  767: 
' '  When  the  plaintiff  in  his  declaration  avers  that  up  to  the  time 
of  the  prosecution  by  the  defendant,  he  had  borne  a  good  char- 
acter, and  claims  damages  for  injury  to  his  character,  it  may  be 
shown  on  cross-examination  of  the  plaintiff's  witnesses  that  he 
was  at  the  time  a  man  of  notoriously  bad  character.  But  where 
the  plaintiff  does  not  in  his  declaration  claim. damages  in  respect 
of  injury  to  reputation,  general  evidence  of  the  plaintiff's  char- 
acter is  inadmissible.  Such  general  evidence  affords  no  proof 
of  probable  cause  for  a  prosecution. ' ' 

But  as  we  have  said  the  question  is  not  raised  by  the  excep- 
tion, and  this  we  shall  proceed  to  show.  The  record  states 
that  the  plaintiff',  to  sustain  the  issue  joined  on  his  part,  offered 
testimony  tending  to  prove  that  he  carried  on  the  business  of 
selling  wood  and  coal  by  taking  orders  at  No.  2  North  Street, 
in  Baltimore  City,  but  owned  no  wood  and  coal  of  his  own, 
and  that  he  had  been  engaged  in  the  business  for  some  ten  years ; 
he  then  offered  testimony  tending  to  prove  the  allegations  of 
the  declaration  but  offered  no  testimony  as  to  his  general  reputa- 
tion.    After  the  plaintiff  had  closed,  the  defendant  offered  to 


284  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

produce  testimony  tending  to  prove  that  the  plaintiff's  reputa- 
tion for  credit  was  bad,  and  that  his  reputation  for  honesty 
was  bad  before  the  said  charge  was  made  against  him  by  the 
defendant,  and  for  this  purpose  called  James  Diggs  as  a  wit- 
ness, and  put  to  him  this  question,  ' '  Do  you  know  the  standing 
of  George  W.  Hurtt  for  credit  and  honesty  among  the  men  and 
parties  in  the  same  business  with  him  in  this  community?"  To 
this  question  the  plaintiff's  counsel  objected  and  the  court  sus- 
tained the  objection.  The  judge  then  proceeded  to  give  his 
reasons  for  this  ruling  sustaining  the  objection  to  this  question, 
and  said  the  "gravamen  of  the  action  was  the  false  imprison- 
ment of  the  plaintiff  with  malice  and  without  probable  cause, 
and  that  the  averment  in  the  narr.  with  reference  to  his  good 
repute,  was  matter  of  inducement  and  not  traversable ;  the  ques- 
tion of  character  therefore  was  not  in  issue,  and  the  evidence 
proposed  to  be  given  was  inadmissible."  The  defendant  then 
(as  the  exception  states)  through  his  counsel  excepted  to  the 
court 's  ruling,  and  the  exception  was  duly  signed.  Now  whether 
the  reasons  which  the  court  gave  in  support  of  the  ruling  ex- 
cepted to  were  erroneous  or  not  is  wholly  immaterial.  What 
this  court  must  determine  is  whether  the  testimony  offered  was 
admissible,  and  not  whether  a  right  or  w'rong  reason  was 
assigned  for  its  rejection.  What  then  was  the  testimony  actually 
offered  and  rejected?  It  was  simply  an  offer  to  prove  by  the 
witness,  Diggs,  then  on  the  stand  (if  he  could  have  so  testified), 
that  the  plaintiff 's  reputation  for  credit  and  honesty  among  those 
in  the  same  business  with  him  in  the  city  of  Baltimore  was  bad. 
To  thfe  question  by  which  it  was  sought  to  elicit  from  the  witness 
this  testimony  the  plaintiff  objected,  and  it  was  this  objection 
which  the  court  sustained.  The  sustaining  of  this  objection  and 
the  refusal  to  allow  this  question  to  be  put  to  the  witness  was 
the  ruling  which  the  court  was  called  upon  to  make  and  did 
make,  and  to  which  the  defendant  excepted,  and  which  alone  is 
before  us  for  review.  But  it  is  clear  that  evidence  of  the  plain- 
tiff's bad  reputation  among  a  particular  class  of  persons  is  not 
admissible  in  such  an  action.  No  case  can  be  found  to  sustain 
the  admission  of  such  testimony.  None  of  the  decisions  go 
further  than  to  say  that  the  general  bad  reputation  or  the 
notoriously  bad  character  of  the  plaintiff  may  be  admitted. 

We  must,  therefore,  affirm  this  judgment  whatever  may  be 
our  opinion  upon  the  general  question  argued  at  bar.     If  the 


Sec.  2.]  eschbach  v.  hurtt.  285 

defendant  had  at  the  trial  witnesses  who  could  have  proved  the 
plaintiff's  general  bad  repute  or  notoriously  bad  character  for 
honesty  or  integrity  before  he  made  the  criminal  charge  against 
him,  it  was  his  duty  to  have  called  them,  or  one  of  them  to  the 
stand  and  propounded  appropriate  questions  for  the  purpose 
of  eliciting  such   proof,   and   then   upon   objection   made   and 
sustained  by  the  court  and  an  exception  taken,   the  question 
would  have  been  presented  for  review  in  this  court,  and  it  would 
have  been  a  real  and  substantial  question  in  the  cause.     But  if 
he  had  no  witnesses  ready  so  to  testify  he  was  not  injured  by  the 
opinion  of  the  court  expressed,  even  though  it  were  erroneous 
and  the  subject  of  an  exception.     It  was  not  competent  for  him 
simply  to  make  an  offer  of  proof  which  he  had  no  witnesses  to 
sustain,  and  insist  upon  the  court  deciding  the  question  which 
that  offer  raised,  for  that  would  be  invoking  from  the  court  below 
and  from  this  court  a  decision  upon  a  mere  moot  question.     If 
such  a  practice  were  allowed  it  would  be  quite  possible  for  a 
party,  without  having  any  witnesses  at  all  to  the  point,  to  raise 
any  controverted  or  difficult  question  as  to  the  admissibility  of 
evidence,  which  the  cause  on  trial  admitted  of,   and  obtain  a 
reversal  of  the  judgment  against  him,  if  the  court  below  should, 
in  the  opinion  of  this  court,  have  ruled  erroneously  on  such  a 
question.     Nor  was  it  competent  for  the  defendant,  as  the  excep- 
tion shows  was  the   case,   to  make   an   offer  of  proof,   without 
stating  he  could  sustain  it  by  a  competent  witness,  and  for  the 
purpose  of  sustaining  it  produce  a  witness  who  could  only  prove 
(luite  a  different  thing  and  whose  testimony  was  clearly  inad- 
missible, and  then  because  the  court  rejected  the  testimony  of 
such  a  witness,   complain   that   besides   rejecting  it   the   court 
expressed  an  opinion  tliat  the  proof  contained  in  such  general 
offer  would  be  inadmissible  even  if  witnesses  should  be  called 
who  could  support  it  by  their  testimony.     We  should,  therefore, 
be  compelled  to  affirm  this  judgment,  even  if  we  were  of  opinion 
that   under  this   declaration,    and   on    the   issue   joined   on   the 
plea  of  not  guilty,  evidence  of  the  general  bad  reputation  of 
the  plaintiff  was  admissible.^ 

1  And  so   where   a   general   objec-       nssigned.     Tooley  v.  Bacon,  70  N.  Y. 
tion  is  sustained  without  any  reason       34. 


286  CONDUCT    OF   THE   TRIAL.  [  ChAP.  IV. 

Section  3.     Demurrers  to  the  Evidence.^ 

MIDDLETON  v.  BAKER. 

Croke's  Elizabeth,  752.     [1600.] 

Ejectione  firmae.  It  was  held  by  all  the  court  upon  evidence 
to  a  jury  that  if  the  plaintiff  in  an  ejectione  firmae,  or  other 
action,  gives  in  evidence  any  matter  in  writing  or  record,  or  a 
sentence  in  the  spiritual  court  (as  it  was  in  this  case),  and  the 
defendant  offers  to  demur  thereupon,  the  plaintiff  ought  to 
join  in  the  demurrer,  or  waive  the  evidence,  because  the  de- 
fendant shall  not  be  compelled  to  put  a  matter  of  difficulty  to 
lay  gents,  and  because  there  cannot  be  any  variance  of  a  matter 
in  writing ;  but  if  either  party  offers  to  demur  upon  any  evidence 
given  by  witness,  the  other,  unless  he  pleaseth,  shall  not  be 
compelled  to  join ;  because  the  credit  of  the  testimony  is  to  be 
examined  by  a  jury,  and  the  evidence  is  certain  (?),  and  may 
be  enforced  more  or  less,  but  both  parties  may  agree  to  join  in 
demurrer  upon  such  evidence.  And  in  the  queen's  case,  the 
other  party  may  not  demur  upon  evidence  shown  in  writing 
or  record  for  the  queen,  unless  the  queen's  counsel  will  thereto 
assent;  but  the  court  in  such  case  shall  charge  the  jury  to  find 
the  matter  special,  as  appears  34.  Hen.  8,  Dyer,  53.  But  this 
is  by  prerogative. 


WORSLEY  V.  FILISKER. 

2  Rolle,  117.     [1620.] 

The  plaintiff  in  an  ejectione  firmae  gave  in  evidence  to  the 
jury  an  indenture  of  bargain  and  sale  enrolled  in  the  Chancery, 
exemplified  under  seal,  and  in  the  fine  of  the  exemplification 
there  was  a  memorandum  in  this  manner,  viz.,  that  the  plea  was 
enrolled,  but  no  time  of  the  enrollment  was  mentioned;  the 
plaintiff  offered  to  give  divers  circumstances  in  evidence  by  which 
he  would  prove  that  the  enrollment  was  within  six  months,  where- 
upon Sir  Henry  Yelverton,  Attorney-General  of  the  King,  and 

1  For  a  review  of  the  leading  cases  Slocum  v.  N.  Y.  Life  Ins.  Co.,  228 
on   demurrers   to   the   evidence,   see       U.  S.  364  (1912). 


II 


Sec.  3.]  worsley  v.  filisker.  287 

counsel  of  the  other  partj^,  offered  to  demur,  claiming  that  the 
time  of  the  enrollment  by  the  statute  of  27  H.  8,  was  made  part 
of  the  record,  and  the  enrollment  for  this  reason  could  not  be 
proved  otherwise,  because  if  a  bargain  and  sale,  and  the  enroll- 
ment within  six  months,  should  be  pleaded,  and  afterwards  if  nul 
tiel  record  should  be  pleaded,  it  is  a  good  plea,  and  the  time  of 
enrollment  is  a  matter  of  record  and  can  not  be  tried  by  the 
jury.  If  the  plaintiff  will  not  join  in  the  demurrer,  then  he 
ought  not  (?)  to  be  non-suited,  by  Dodridge,  J.,  and  Sir  Henry 
Montague,  C.  J.,  vide  4  Coke,  Hinds'  case  accord. ^ 

Sir  Henry  Yelverton.  We  wish  to  demur,  and  the  plaintiff 
is  held  to  join  with  us,  and  the  court  can  not  exclude  us  from 
our  demurrer.  Dodridge.  Although  the  plaintiff  can  not  re- 
fuse to  join  in  the  demurrer  unless  he  will  waive  his  evidence,  yet 
the  court  is  not  bound,  but  may  deny  and  hinder  you  from 
demurring  by  overruling  the  matter  if  it  seems  clear  to  them  in 
law.2  See  5  Coke,  Baker's  case.  Sir  Henry  Yelverton,  Attor- 
ney-General, the  time  of  the  enrollment  should  be  inserted  in 
the  record,  because  this  is  made  a  part  of  the  record  by  the 
statute  of  27  H.  8,  and  if  it  should  be  omitted,  although  it  was 
actually  enrolled  within  six  months,  the  bargain  and  sale  is 
void.  Montague,  C.  J.,  and  Haugiiton  held  contra,  because  the 
statute  says,  "except  it  be  enrolled,"  therefore  it  is  sufficient 
if  it  was  enrolled.  And  while  this  matter  was  in  debate,  a 
clerk  was  sent  to  the  Office  of  Enrollment  to  learn  their  usage 
and  custom,  and  whether  they  were  accustomed  to  insert  the 
time  of  enrollment,  and  he  returned  and  certified  to  the  court 
on  his  oath  that  they  said  to  him  that  before  the  year  of  16 
Elizabeth,  at  which  time  the  Office  of  Enrollment  was  estab- 
lished, they  did  not  insert  the  time,  but  their  custom  was  to  do 
so  now ;  and  the  enrollment  of  the  bargain  and  sale  in  question 
in  this  case  was  made  in  5  Elizabeth,  wherefore  Sir  Henry 
Montague,  the  Chief  Justice,  with  the  assent  of  the  court,  re- 
ferred this  to  the  jury  upon  the  evidence  which  the  plaintiff 
had  produced,  whether  this  was  enrolled  or  not. 

1  See  Crawford  v.  Jackson,  1  to  refuse  to  compel  a  joinder  in  de- 
Eawle,  427,  where  verdict  was  di-  murrer  where  the  evidence  is  clearly 
rected  for  defendant  on  plaintiff's  against  the  demurrant,  see  Univer- 
refusal  to  join.  sity  v.  Snyder,  100  Va.  567. 

2  As  to  the  discretion  of  the  Court 


288  CONDUCT    OF   THE   TRIAL.  [ChAP,  IV. 

HALL  V.  BROWDER'S  ADMINISTRATORS. 
4:  Howard  (Miss.),  224.     [1839.] 

Mr.  Justice  Smith  delivered  the  opinion  of  the  court. 

This  was  an  action  of  trover  instituted  by  Jno.  F.  Carmichael, 
as  administrator  de  bonis  non  of  Harriet  Browder,  deceased,  in 
the  Circuit  Court  of  Wilkinson  county,  to  recover  damages  for 
the  conversion  of  thirty-four  bales  of  cotton. 

Christopher  E.  Hall,  who  is  the  appellant  in  this  court,  and 
who  was  the  defendant  in  the  suit  below,  filed  his  demurrer  to 
the  evidence  adduced  by  the  plaintiff  on  the  trial  in  support 
of  his  demand,  and  the  facts  established  by  this  evidence  are 
stated  and  admitted  upon  the  record.  Upon  the  demurrer  to  the 
evidence  there  was  joinder  by  plaintiff,  and  a  decision  of  the 
court  overruling  the  same.  After  which  decision,  the  cause  was 
submitted  to  the  jury  upon  the  evidence  thus  demurred  to ;  who, 
having  found  for  the  plaintiff  the  amount  of  damages  sustained 
by  him  by  reason  of  the  conversion,  judgment  final  was  entered 
for  the  amount  of  the  verdict. 

From  this  decision  and  judgment  of  the  court  the  defendant 
has  appealed,  and  insists  before  this  court  that  there  was  error 
in  the  proceeding  below,  in  the  following  particulars,  to  wit : 

1.  That  there  was  error  in  submitting  the  cause  to  a  jury  upon 
the  evidence,  after  overruling  the  demurrer;  whereas  the  court 
ought  to  have  pronounced  a  final  judgment  upon  the  demurrer. 
And  2.  That  there  was  error  in  overruling  the  demurrer  to  the 
evidence  offered  at  the  trial. 

To  test  the  correctness  of  the  first  proposition  it  is  necessary 
to  inquire  into  the  object  and  effect  of  a  demurrer  to  evidence. 

A  demurrer  in  law  is  the  tender  of  an  issue  in  law,  upon  the 
facts  which  have  been  established  by  the  pleadings,  and  a  de- 
murrer to  the  evidence  is  a  tender  of  an  issue  in  law  upon  the 
facts  established  by  the  evidence,  and  by  necessity  involves  the 
admission  of  the  truth  of  the  facts  intended  to  be  proved  by 
the  evidence.  The  object  of  a  demurrer  to  evidence  then,  is  to 
raise  the  question  of  the  relevancy,  or  the  sufficiency  in  law  of 
the  facts  intended  to  be  proved,  and  by  it  admitted  to  be  true, 
to  maintain  the  issue  in  favor  of  the  adverse  party.  This  pro- 
ceeding exchanges  the  issue  in  fact,  which  is  made  up  and  closed 
to  the  jury,  to  an  issue  in  law,  and  transfers  it  to  the  court. 


Sec.  3.] 


WRIGHT  V.   PINDAR. 


289 


It  is  the  peculiar  province  of  the  jury,  to  decide  upon  the 
weight  of  the  evidence,  in  reference  to  the  facts  put  in  issue  by 
the  pleadings;  but  the  necessarj^  incidents  of  a  demurrer  to 
evidence  supersedes  this  office  of  the  jury,  and  makes  the  deter- 
mination of  the  issue  in  fact,  dependent  upon  the  decision  of  the 
question  of  law.  It  follows,  therefore,  as  the  inevitable  effect 
of  a  demurrer  to  evidence,  to  which  there  is  a  joindure,  that  the 
jury  are  discharged  from  the  further  consideration  of  the  issue 
submitted  in  the  first  instance  to  them.  The  court,  therefore, 
erred  in  not  rendering  judgment  on  the  demurrer,  and  awarding 
a  writ  of  enquiry  to  assess  the  damages,  consequent  upon  the 
trover  and  conversion,  instead  of  submitting  the  cause  in  chief 
to  a  jury.i 


WRIGHT  V.  PINDAR.i 


Aleyn,  18.     [B.  R.  1648.] 


In  a  trover  and  conversion  brought  by  an  administrator,  upon 
not  guilty  pleaded,  the  defendant  upon  the  evidence  confesses, 


1  Accord :  Gluck  v.  Cox,  90  Ala. 
331;  Knox  v.  Garland,  7  Call.  (Va.) 
241.  The  demurrant  is  not  entitled 
to  have  the  case  reopened  for  fur- 
ther proof.  Galveston  Ry.  v.  Tem- 
pleton,  87  Tex.  42. 

The  damages  may  be  assessed  con- 
ditionally by  the  first  jury,  or  a  new 
jury  may  be  called  for  that  purpose. 
Gluck  V.  Cox,  90  Ala.  331. 

1  The  following  account  of  this 
case  is  given  in  Style  22. 

The  Case  of  Wright  and  Pynder 
was  moved  again  to  have  the  jvidg- 
ment  of  the  Court.  Roll,  J.,  said, 
that  matter  of  fact  ought  to  be 
agreed  in  a  demurrer  to  an  evi- 
dence, otherwise  the  Court  cannot 
proceed  upon  the  demurrer,  for  the 
judges  cannot  try  the  matter  in  fact, 
for  that  were  for  the  judges  to  give 
H.  T.  p.— 19 


the  verdict,  which  belongs  to  the 
jury  to  do,  and  to  waive  the  mat- 
ter in  law,  which  they  should  de- 
termine, and  he  said,  that  if  a  deed 
be  pleaded  the  party  must  show  it 
in  Court,  but  if  it  be  given  in  evi- 
dence it  is  not  necessary  to  show  it 
if  it  can  otherwise  be  proved  to  the 
jury,  and  so  is  it  of  a  record  given 
in  evidence,  and  cited  one  Worsley's 
Case,  17  Jac.  Rolls,  J.,  took  also 
two  other  exceptions  to  the  pleading. 
1.  That  the  goods  mentioned  in  the 
schedule  appear  not  to  be  the  same 
contained  in  the  declaration.  2.  No 
title  is  made  to  the  indenture  by 
him  who  brings  the  action,  and  con- 
cluded upon  the  whole  matter  that 
the  demurrer  was  not  good,  and  that 
there  ought  to  be  a  venire  facias  de 
novo  to  try  the  matter  again.  Bacon, 


290  CONDUCT    OF  THE   TRIAL.  [ChAP.  IV. 

that  he  did  convert  them  to  his  own  use ;  but  further  saith,  that 
the  intestate  was  indebted  to  the  king,  and  that  18  May,  14  Car,, 
it  was  found  by  inquisition  that  he  died  possessed  of  the  goods 
in  question;  which  being  returned,  a  venditioni  exponas  was 
awarded  to  the  sheriff,  who,  by  virtue  thereof,  sold  them  to  the 
defendant.  And  to  prove  this  the  defendant  showed  the  warrant 
of  the  treasurer,  and  the  office-book  in  the  exchequer,  and  the 
entry  of  the  inquisition,  and  the  venditio-ni  exponas  in  the  clerk's 
book;  to  which  the  plaintiff ^  saith,  that  the  matter  alleged  is 
not  sufficient  to  prove  the  defendant  not  guilty;  and  that  there 
was  no  such  writ  of  venditioni  exponas.  And  the  defendant 
saith,  that  the  matter  is  sufficient,  and  that  there  was  such  a  writ. 
And  it  was  resolved,  that  he  that  demurs  upon  the  evidence 
ought  to  confess  the  whole  matter  of  fact  to  be  true,  and  not 
refer  that  to  the  judgment  of  the  court.  And  if  the  matter  of 
fact  be  uncertainly  alleged,  or  that  it  be  doubtful  whether  it  be 
true  or  no,  because  offered  to  be  proved  only  by  presumptions  and 
probabilities,  and  the  other  party  will  demur  thereupon,  he  that 
alleges  this  matter  cannot  join  in  demurrer  with  him,  but  ought 
to  pray  the  judgment  of  the  court,  that  he  may  not  be  admitted  to 
his  demurrer,  unless  he  will  confess  the  matter  of  fact  to  be  true. 
And  for  that  the  defendant  did  not  so  in  this  case,  both  parties 
have  misbehaved  themselves,  and  the  court  cannot  proceed  to 
judgment.  But  it  was  clearly  agreed,  that  upon  evidence  the 
court  for  reasonable  cause,  at  their  discretion,  may  permit  any 

J.,  much  to  the  same  effect,  but  dif-  whether  he  ought  to  join.  The  Court 
fered  in  this,  that  there  ought  not  advised  to  search  precedents  for  a 
to  be  a  venire  facias  de  novo,  but  venire  facias  de  novo  after  a  de- 
said  that  judgment  ought  to  be  murrer  vipon  an  evidence,  and  if 
given  against  one  party,  to  wit,  the  there  be  any,  they  held  that  the  same 
defendant,  for  ill  joining  in  de-  jury  ought  to  come  again,  and  not 
murrer,  to  the  intent  the  party  that  another.  EoU  said,  if  a  special  ver- 
is  not  in  fault  may  be  dismissed,  diet  be  found  insufficient,  a  new 
and  the  parties  here  have  waived  the  venire  facias  ought  to  issue,  and  he 
trial  -per  pays  by  joining  in  de-  saw  no  difference  between  that  and 
murrer.      But    Roll    answered    that  this  case. 

no  judgment  at  all  could  be  given,  2  Generally  the  party  holding  the 
for  both  parties  be  in  fault,  one  by  affirmative  of  the  issue  can  not  de- 
tendering  the  demurrer,  the  other  by  mur  to  the  evidence  of  the  adverse 
joining  in  it,  and  the  defendant  party.  Pickell  v.  Isgrigg,  6  Fed. 
might  have  chosen  whether  he  would  676 ;  Bennett  v.  Perkins,  47  W.  Va. 
have  joined  or  no,  but  might  have  425;  Stiles  v.  Inman,  55  Miss.  469. 
prayed  the  judgment  of  the  Court 


Sec.  3.]  fitz-harris  v.  boiun.  291 

matter  to  be  shown  to  prove  a  record,  Com.  411  b.  And  the 
opinion  of  the  court  was,  that  an  alias  venire  facias  should  be 
awarded,  and  not  a  vemre  de  novo,  because  no  verdict  was  given. 


FITZ-HARRIS  v.  BOIUN. 

1  Levinz,  87.     [B.  R.  1662] 

Error  of  a  judgment  in  the  Palace  Court  in  assumpsit,  where 
to  prove  the  consideration  an  arrest  was  to  be  proved  by  the 
plaintiff;  and  for  that  he  did  not  produce  the  writ,^  the  defend- 
ant demurred  on  the  evidence,  and  thereupon  judgment  was 
given  for  the  plaintiff ;  and  now  to  reverse  the  judgment  it  was 
said  for  the  plaintiff  in  error,  that  the  king's  writs  are  matters 
of  record,  and  are  not  to  be  proved  but  by  themselves;  and  it 
was  agreed  by  the  Court  that  the  writ  ought  to  have  been  pro- 
duced in  evidence,  but  by  the  demurrer  it  is  confessed,  the  arrest 
being  matter  of  fact,  though  it  be  to  be  proved  by  a  matter  of 
record,  and  the  jury  might  of  their  own  knowledge  know  that 
there  was  a  writ.  Dyer  239.  Plowd.  Com.  Scholastica's  case. 
And  by  the  demurrer  on  the  evidence  all  matters  of  fact  are 
confessed  that  the  jury  could  not  know  of  their  own  conusance 
and  the  judgment  was  affirmed. 


CORT  v.  BIRKBECK. 

1  Douglas,  218.     [B.  R.  1779.] 

Lord  Mansfield.  This  is  an  action  on  the  case,  in  which  the 
plaintiff  states,  precisely  and  specially,  his  ground  of  action, 
which  is  (as  stated  in  the  first  and  fifth  counts),  that  he  is  pos- 
sessed of  certain  mills  at  Settle,  and  that  no  tenant,  inhabitant, 
and  resident  within  the  manor  can  spend  or  use  corn  ground 
which  has  not  been  ground  at  the  plaintiff's  mills.     The  breach 

1  See    Chichester    v.     Philips,     T. 
Raymond  405,  post  317, 


292  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

assigned  is,  that  the  defendant  used  ground  within  the  manor, 
several  quantities  of  corn,  etc.,  which  the  defendant  well  knew 
to  have  been  ground  elsewhere  than  at  the  plaintiff's  mills.  To 
this  the  defendant  has  pleaded  not  guilty.  The  issue  is — on  the 
custom, — the  defendant  being  subject  to  it, — and  the  breach.  The 
plaintiff  must  prove  all  the  three  points.  The  defendant  does 
enough  if  he  disprove  any  of  them.  The  parties  go  to  trial  by 
the  authority  of  the  court,  to  inquire  into  the  truth  of  these 
facts.  This  is  not  like  an  ejectment  or  an  action  for  money 
had  and  received,  where  conclusions  only  are  stated  in  the 
declaration,  and  the,  premises  appear  in  evidence.  Everything 
to  be  proved  is  here  set  forth,  and  they  have  nothing  to  do  at 
the  trial  with  the  question,  whether  the  facts  as  alleged  in  the 
declaration  are  or  are  not  sufficient  to  entitle  the  plaintiff  to 
recover.  If  that  had  been  intended  to  be  disputed,  it  might  have 
been  done  in  limine,  by  a  demurrer  to  the  declaration.  As  to 
the  evidence,  it  seems  to  me  that  the  custom  established  by  the 
decree  in  the  Court  of  Exchequer  is  the  same,  in  substance,-  with 
that  on  which  this  action  is  brought.  It  is  admitted  on  the  record 
that  the  mills  are  the  same  and  that  the  defendant  is  resient 
in  the  manor.  (His  Lordship  then  stated  all  the  material  part  of 
the  evidence.)  To  this  evidence  the  defendant  has  demurred, 
and  the  only  question  is  whether,  if  the  jury  believed  the  evi- 
dence, it  is  competent  to  maintain  the  issue.  ^  As  to  that  ques- 
tion, there  is  no  doubt  but  the  proceedings  in  the  Exchequer 
are  evidence  to  prove  the  custom  and  that  the  parol  testimony 
of  Armistead  is  evidence  to  show  that  the  defendant  used  flour 
not  ground  at  the  plaintiff's  mills.  The  demurrer  seems  to  be 
founded  on  a  mistake  concerning  the  nature  of  this  proceeding. 
It  was  argued  as  if  it  had  been  a  demurrer  to  the  declaration, 
or  a  motion  in  arrest  of  judgment,  on  the  objection  that  the 
custom  could  not  be  supported  in  law  beyond  the  case  of  corn  in 
a  grindable  state,  and  could  not  extend  to  flour  imported  or 
given  to  inhabitants,  and  ground  before  it  came  to  their  posses- 
sion. But  that  is  not  now  before  the  court;  nor  was  it  under 
the  cognizance  of  the  jury.     Nothing  can  be  stronger  to  show 

1  In     Cocksedge    v.     Fanshaw,     1  was  sufficient  to  satisfy  the  jury  of 

Douglas    118,    the    same    judge    ob-  the  fact  of  the  custom,  for,  by  the 

served:     "But  what  is  now  brought  demurrer,     the     defendant     admits 

before  this  Court  on  this  demurrer?  every  fact  which  the  jury  could  have 

Not  a  question  whether  the  evidence  found  upon  the  evidence. ' ' 


Sec.  3.]  gibson  v.  httnter.  293 

this  than  the  judgment  which  we  must  give,  viz.,  "That  the 
evidence  was  sufficient  to  maintain  the  issue."  This  w^ill  not  be 
final.  The  consequence  will  be  the  same  as  if  a  verdict  had  been 
given  for  the  plaintiff.  But  there  is  one  defect  which  would  not 
have  been,  ifthere  had  been  a  verdict,  namely,  that  no  damages 
have  been  assessed,  and  therefore  there  must  be  a  writ  of  inquiry. 
After  that  the  defendant  may  take  advantage  of  any  objection 
to  the  declaration  by  moving  in  arrest  of  judgment  or  bringing 
a  writ  of  error.  We  are  all  of  opinion  that  the  evidence  was 
sufficient. 


GIBSON  v.  HUNTER. 

2  H.  Blachstone,  187.     [House  of  Lords,  1793.] 

Assumpsit  by  the  holder  against  the  acceptors  of  a  bill  of 
exchange  payable  to  a  fictitious  payee,  and  endorsed,  after  ac- 
ceptance, by  the  drawers  in  the  name  of  the  fictitious  payee  for 
value  to  the  plaintiff.  Evidence  was  given  of  a  long  course  of 
dealings  in  similar  bills  between  the  drawers  and  acceptors  for 
the  purpose  of  raising  an  inference  from  these  circumstances 
that,  at  the  time  of  accepting  the  bill,  the  defendants  knew  the 
payee  to  be  fictitious.  The  defendants  demurred  to  the  evidence 
and  the  plaintiff  was  forced  to  join.i  Judgment  was  entered  for 
defendants  on  the  demurrer,  and  the  plaintiff  sued  out  a  writ 
of  error.2 

1  The  demurrer  in  this  case,  after  this  they  are  ready  to  verify :  where- 
reciting  the  evidence  at  length,  con-  fore,  for  want  of  sufficient  matter  in 
eluded  as  follows:  "And  the  said  that  behalf,  shown  in  evidence  to 
Thomas  Gibson  and  Joseph  Johnson  the  jury  aforesaid,  the  said  Thomas 
say,  that  the  aforesaid  matters,  to  Gibson  and  Joseph  Johnson  pray 
the  jurors  aforesaid,  in  form  afore-  judgment,  and  that  the  jury  afore- 
said, shown  in  evidence  by  the  said  said  may  be  discharged  from  giving 
Robert  Hunter,  are  not  sufficient  in  any  verdict  in  the  said  issue,  and 
law  to  maintain  the  said  issue  within  that  the  said  Robert  Hunter  may  be 
joined  on  the  part  of  the  said  Robert  precluded  from  having  his  said  ac- 
Hunter,  and  that  they,  the  said  tion  against  the  said  Thomas  Gibson 
Thomas  Gibson  and  Joseph  Johnson,  and  Joseph  Johnson. " 
to  the  matters  aforesaid,  in  form  2  This  condensed  statement  is 
aforesaid  shown  in  evidence,  have  taken  from  Gould  on  Pleading,  p. 
no  necessity,  nor  are  they  obliged  by  466. 
the  law  of  the  land  to  answer;  and 


294 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


Lord  Chief  Justice  Eyre  thus  delivered  the  unanimous  answer 
of  the  judges. 

The  questions  referred  by  your  Lordships  to  the  judges  arise 
upon  a  proceeding  whicli  is  called  a  demurrer  to  evidence  and 
which,  though  not  familiar  in  practice,  is  a  proceeding  well  known 
to  the  law.  It  is  a  proceeding  by  which  the  judges,  whose  prov- 
ince it  is  to  answer  to  all  questions  of  law,  are  called  upon  to 
declare  what  the  law  is  upon  the  facts  shown  in  evidence  analogous 
to  the  demurrer  upon  facts  alleged  in  pleading.  My  Lords,  in 
the  nature  of  the  thing,  the  question  of  law  to  arise  out  of  the 
fact  cannot  arise  till  the  fact  is  ascertained.  It  is  the  province 
of  a  jury  to  ascertain  the  fact,  under  the  direction  and  assistance 
of  the  judge ;  the  process  is  simple  and  distinct,  though  in  our 
books  there  is  a  good  deal  of  confusion  with  respect  to  a  demurrer 
upon  evidence,  and  a  bill  of  exceptions,  the  distinct  lines  of 
which  have  not  always  been  kept  so  much  apart  as  they  ought  to 
have  been.^ 

My  Lords,  in  the  first  stage  of  that  process,  under  which  facts 
are  ascertained,  the  judge  decides  whether  the  evidence  offered 


3  Simrall,  C.  J.,  in  Stiles  v.  In- 
man,  55  Miss.  469  (1877):  "On 
account  of  the  advantages  of  this 
mode  of  procedure,  by  which  the 
ease  is  withdrawn  from  the  jury  and 
referred  to  the  Court  for  its  judg- 
ment on  the  law  arising  on  the  facts, 
it  is  growing  in  favor  with  the  pro- 
fession. But  this  case  is  another 
example  of  what  we  have  on  a  for- 
mer occasion  remarked:  that  the 
manner  in  which  it  may  be  availed 
of  is  not  well  or  generally  under- 
stood. 

' '  There  was  no  mode  in  which  the 
jury  could  be  compelled  to  find  a 
special  verdict.  The  demurrer  to 
the  evidence  is  a  convenient  sub- 
stitute for  the  special  verdict.  The 
special  verdict  introduces  into  the 
record  the  facts.  The  demurrer 
upon  the  evidence  does  precisely  the 
same  thing.  The  whole  operation  is 
under  the  supervision  of  the  Court, 
and  it  should  never  be  allowed,  if  it 


is  not  a  proper  case,  or  if  the  facts 
are  not  correctly  and  fully  stated. 
2  Tidd's  Pr.  865. 

"It  is  altogether  irregular  to 
make  the  demurrer  to  the  evidence 
matter  of  record  by  bill  of  excep- 
tions. It  is  as  much  part  of  the 
record  proper  as  the  demurrer  to 
pleadings,  or  the  verdict  of  the  jury. 
Both  are  of  the  same  nature:  the 
former  takes  the  opinion  of  the 
Court  on  the  facts  shown  in  the 
pleadings;  the  latter,  on  the  facts 
shown  in  evidence. 

' '  The  correct  formula  is  to  reduce 
to  writing  a  recitation,  first,  of  the 
organization  of  the  jury;  second,  a 
statement  of  the  facts  shown  in  evi- 
dence by  the  plaintiff  in  support  of 
the  issue  on  his  side;  and  then  con- 
clude with  the  allegation  that  the 
said  matters  are  not  sufficient  in  law 
to  maintain  the  plaintiff's  issue — 
wherefore  he  prays  judgment,  etc. 

"The    writing    incorporating   the 


Sec.  3. 


GIBSON   V.    HUNTER. 


295 


conduces  to  the  proof  of  the  fact  which  is  to  be  ascertained; 
and  there  is  an  appeal  from  his  judgment  by  a  bill  of  exceptions. 
The  admissibility  of  the  evidence  being  established,  the  question 
how  far  it  conduces  to  the  proof  of  the  fact  which  is  to  be  ascer- 
tained is  not  for  the  judge  to  decide,  but  for  the  jury  exclusively ; 
with  which  judges  interfere  in  no  case,  but  where  they  have  in 
some  sort  substituted  themselves  in  the  place  of  the  jury  in 
attaint,  upon  motions  for  new  trials.  When  the  jury  have  ascer- 
tained the  fact,  if  a  question  arises  whether  the  fact  thus 
ascertained  maintains  the  issue  joined  between  the  parties,  or, 
in  other  words,  whether  the  law  arising  upon  the  fact  (the 
question  of  law  involved  in  the  issue  depending  upon  the  true 
state  of  the  fact)  is  in  favor  of  one  or  other  of  the  parties,  that 
question  is  for  the  judge  to  decide.  Ordinarily  he  declares  to 
the  jury  what  the  law  is  upon  the  fact  which  they  find,  and  then 
they  compound  their  verdict  of  the  law  and  fact  thus  ascer- 
tained. But  if  the  party  wishes  to  withdraw  from  the  jury,  the 
application  of  the  law  to  the  fact,  and  all  consideration  of  what 


matters  of  fact  and  the  formal  de- 
murrer should  be  transcribed  on  the 
minutes  of  the  Court,  and  thereby 
become  parcel  of  the  record.  2 
Tidd's  Pr.;  Walk.  Am.  Law,  609. 

* '  For  the  purpose  of  curing  the 
irregularities  in  our  practice,  we 
have  been  thus  minute  in  the  descrip- 
tion of  the  nature  and  function  of 
this  pleading;  and  we  append  to 
this  opinion  an  approved  form  of  it. 

' '  The  demurrant  in  this  case  made 
a  wide  departure  from  the  estab- 
lished practice. 

* '  The  demurrer,  embracing  the 
facts  shown  in  evidence,  was  not 
spread  on  the  minutes,  nor  otherwise 
manifested,  except  by  the  bill  of  ex- 
ceptions. 

"We  are  not  inclined  to  overlook 
such  grave  irregularities  as  occurred 
in  this  case.  In  reality,  the  de- 
murrer must  have  been  put  in  ore 
tenus;  and  there  would  have  been 
not  so  much  as  a  written  memorial 
of  it  in  the  papers,  but  for  the 
necessity  of  bringing  the  case  to  this 


Court,  when  it  was  disclosed  in  the 
bill  of  exceptions. 

"It  need  hardly  be  said  that  this 
demurrer  may  be  taken  to  the  evi- 
dence of  that  party  on  whom  is  the 
burden  of  proof — that  is,  the  party 
who  assumes  the  affirmation  of  the 
issue.  It  follows  that  the  plaintiff 
may  demur  to  the  evidence  of  the 
defendant  adduced  to  maintain  an 
affirmative  issue  by  him. 

' '  The  judgment  is  reversed  and  a 
repleader  awarded,  and  cause  re- 
manded. ' ' 

See  Golden  v.  Knowles,  120  Mass. 
336',  disregarding  an  oral  demurrer. 
A  bill  of  exceptions  is  not  necessary 
to  preserve  the  evidence  on  de- 
murrer. Ey.  v.  Sparrow,  98  Va.  630. 
But  it  seems  that  a  bill  of  excep- 
tions may  be  necessary  to  preserve 
the  question  that  the  party  was  er- 
roneously compelled  to  join  in  a 
demurrer  which  did  not  contain  all 
of  the  proper  admissions.  Crowe  v. 
People,  92  111.  230. 


296  CONDUCT   OP  THE   TRIAL.  [ChAP.  IV. 

the  law  is  upon  the  fact,  he  then  demurs  in  law  upon  the  evi- 
dence, and  the  precise  operation  of  that  demurrer  is  to  take  from 
the  jury  and  to  refer  to  the  judge,  the  application  of  the  law  to 
the  fact.  In  the  nature  of  things,  therefore,  and  reasoning  by 
analogy  to  other  demurrers,  and  having  regard  to  the  distinct 
functions  of  judges  and  of  juries,  a>id  attending  to  the  state  of 
the  proceeding  in  which  the  demurrer  takes  place,  the  fact  is  to 
be  first  ascertained. 

My  Lords,  with  this  short  introduction,  I  proceed  to  the  first 
question  proposed  to  the  judges,  which  is,  "Whether  upon  the 
state  of  the  evidence  given  for  the  plaintiff  in  this  case  it  was 
competent  to  the  defendants  to  insist  upon  the  jury  being  dis- 
charged from  giving  a  verdict  by  demurring  to  the  evidence  and 
obliging  the  plaintiff  to  join  in  demurrer?"  Your  Lordships' 
question  is  confined  to  this  particular  case ;  but  it  will  be  neces- 
sary for  me  to  proceed  by  steps.  All  our  books  agree  that,  if 
a  matter  of  record,  or  other  matter  in  writing,  be  offered  in  evi- 
dence in  maintenance  of  an  issue  joined  between  the  parties,  the 
adverse  party  may  insist  upon  the  jury  being  discharged  from 
giving  a  verdict,  by  demurring  to  the  evidence,  and  obliging  the 
party  offering  the  evidence  to  join  in  demurrer.  He  cannot 
refuse  to  join  in  demurrer;  he  must  join  or  waive  the  evidence. 
Our  books  also  agree  that  if  parol  evidence  be  offered,  and  the 
adverse  party  demurs,  he  who  offers  the  evidence  may  join  in 
demurrer  if  he  will.  We  are  therefore  thus  far  advanced,  that 
the  demurrer  to  evidence  is  not  necessarily  confined  to  written 
evidence.  The  language  of  our  books  is  very  indistinct  upon 
the  question,  whether  the  party  offering  parol  evidence  should 
be  obliged  to  join  in  demurrer.  Why  is  he  obliged  to  join  in 
demurrer,  when  the  evidence  which  he  has  offered  is  in  writing? 
The  reason  is  given  in  Croke's  report  of  Baker's  case,  because, 
says  the  book,  "there  cannot  be  any  variance  of  matter  in  writ- 
ing." Parol  evidence  is  sometimes  certain,  and  no  more  admitting 
of  any  variance  than  a  matter  in  writing,  but  it  is  also  often 
loose  and  indeterminate,  often  circumstantial.  The  reason  for 
obliging  the  party  offering  evidence  in  writing  to  join  in  de- 
murrer applies  to  the  first  sort  of  parol  evidence,  but  it  does 
not  apply  to  parol  evidence  which  is  loose  and  indeterminate, 
which  may  be  urged  with  more  or  less  effect  to  a  jury,  and  least 
of  all  will  it  apply  to  evidence  of  circumstances,  which  evidence 
is  meant  to  operate  beyond  the  proof  of  the  existence  of  those 


Sec.  3.]  gibson  v.  hunter.  297 

circumstances,  and  to  conduce  to  the  proof  of  the  existence  of 
other  facts.  And  yet,  if  there  can  be  no  demurrer  in  such  cases, 
there  will  be  no  consistency  in  the  doctrine  of  demurrers  to  evi- 
dence, by  which  the  application  of  the  law  to  the  fact  on  an  issue  is 
meant  to  be  withdrawn  from  a  jury  and  transferred  to  the  judges. 
If  the  party  who  demurs  will  admit  the  evidence  of  the  fact,  the 
evidence  of  which  fact  is  loose  and  indeterminate,  or,  in  the  case 
of  circumstantial  evidence,  if  he  will  admit  the  existence  of  the 
fact  which  the  circumstances  offered  in  evidence  conduce  to 
prove,  there  will  then  be  no  more  variance  in  this  parol  evidence 
than  in  a  matter  in  writing,  and  the  reasons  for  compelling  the 
party  who  offers  the  evidence  to  join  in  demurrer  will  then 
apply,  and  the  doctrine  of  demurrers  to  evidence  will  be  uniform 
and  consistent.  That  this  is  the  regular  course  of  proceeding, 
in  respect  to  parol  evidence  of  the  nature  that  I  have  been  describ- 
ing, I  think  may  be  collected  from  the  known  case  upon  this 
subject.  Baker's  ease.  There  is  also  another  case,  Wright  v. 
Pindar,  as  it  stands  reported  in  Aleyn's  Reports,  which  carries 
the  doctrine  further,  and  home  to  every  case  of  evidence  cir- 
cumstantial in  its  nature,  affording  ground  for  a  conclusion  of 
fact  from  fact ;  and  the  two  cases  taken  together,  I  think,  prove 
satisfactorily  that  the  course  is  that  which  I  have  already  sup- 
posed, and  which  would  remove  all  the  difficulties  that  are  in  the 
way  of  obliging  the  party  to,  join  in  demurrer  upon  parol  evi- 
dence. Baker's  case,  after  stating  that  the  party  must  join  in 
demurrer,  or  waive  his  evidence,  where  a  matter  in  writing  is 
shown  in  evidence,  goes  on  thus:  "If  the  plaintiff  produces 
witnesses  to  prove  any  matter  in  fact  upon  which  a  question  in 
law  arises,  if  the  defendant  admits  their  testimony  to  be  true, 
there  also  the  defendant  may  demur  in  law  upon  it,  but  then 
he  ought  to  admit  the  evidence  given  by  the  plaintiff  to  be  true." 
Those  cases  have  very  carefully  marked  the  precise  ground  upon 
which  a  party  may  demur  to  evidence,  and  prove  that  if  a  party 
may  demur,  the  other  party  must  join  in  demurrer.  According  to 
Aleyn's  report  of  the  case  of  Wright  v.  Pyndar,  which  case 
underwent  very  serious  consideration,  it  was  resolved,  "that  he 
that  demurs  upon  the  evidence  ought  to  confess  the  whole  matter 
of  fact  to  be  true,  and  not  refer  that  to  the  judgment  of  the 
court ;  and  if  the  matter  of  fact  be  uncertainly  alleged,  or  that  it 
be  doubtful  whether  it  be  true  or  no,  because  offered  to  be  proved 
by  presumptions  or  probabilities,  and  the  other  party  demurs 


298  CONDUCT    OF   THE  TRIAL.  [ChAP.  IV. 

thereupon,  he  that  alleges  this  matter,  cannot  join  in  demurrer 
with  him,  but  ought  to  pray  the  judgment  of  the  court,  that  he 
may  not  be  admitted  to  his  demurrer,  unless  he  will  confess  the 
matter  of  fact  to  be  true. ' '  It  seems  to  follow  as  a  necessary  con- 
clusion, that  if  he  will  confess  the  matter  of  fact  to  be  true,  there 
he  is  to  be  admitted  to  his  demurrer,  and  that  if  he  is  admitted, 
the  other  party  must  join  in  demurrer.  My  Lords,  it  is  said  in 
some  of  our  books  that  upon  a  demurrer  entered  upon  parol 
evidence  the  party  offering  the  evidence  may  choose  whether  he 
will  join  in  demurrer  or  not.  But  after  having  stated  the  two 
authorities  which  I  have  mentioned,  I  think  those  passages  in 
the  books  must  be  understood  with  the  qualification  mentioned  in 
both  those  authorities,  "unless  the  adverse  party  will  confess 
the  evidence  to  be  true."  The  matter  of  fact  being  confessed, 
the  case  is  ripe  for  judgment  in  matter  of  law  upon  the  evidence, 
and  may  then  be  properly  withdrawn  from  the  jury;  and,  being 
entered  on  the  record,  will  remain  for  the  decision  of  the  judges. 
And  this  operation  of  entering  the  matter  upon  record,  and  in- 
deed the  whole  operation  of  conducting  a  demurrer  to  evidence, 
ought  to  be  under  the  direction  and  control  of  the  judge  at 
nisi  prius,  or  of  the  court,  if  the  trial  be  at  the  bar  of  one  of  the 
king's  courts.  I  take  the  whole  proceeding  upon  a  demurrer  to 
evidence  to  be  under  the  control  of  the  judge  before  whom  the 
trial  is  had.  In  the  case  of  Worsley  v.  Filisker,  which  is  reported 
in  2  Rolle's  Reports,  117,  Mr.  Justice  Dooderidge,  who  was  one 
of  the  ablest  men  upon  the  bench,  said,  "the  court  might  deny 
and  hinder  a  party  from  demurring  by  overruling  the  matter  in 
demurrer,  if  it  seemed  to  them  to  be  clear  in  law" ;  and  the  court 
did  in  point  of  fact,  in  that  case,  overrule  the  demurrer  and 
leave  the  case  to  the  jury.  The  demurrer  in  that  case  was  cer- 
tainly frivolous;  but  if  it  had  been  overruled  improperly,  it 
might,  I  presume,  have  been  the  subject  of  a  bill  of  exceptions. 
If  the  court  may  overrule,  it  may  also  regulate  the  entry  of  the 
proceedings  upon  the  record,  and  the  admissions  which  are  to 
be  made,  previous  to  the  allowing  of  the  demurrer.  And,  my 
Lords,  after  this  explanation  of  the  doctrine  of  demurrers  to  evi- 
dence, I  have  very  confident  expectations  that  a  demurrer  like  the 
present  will  never  hereafter  find  its  way  into  this  House. 

My  Lords,  the  answer  to  the  first  question  that  the  judges  have 
agreed  upon,  and  which  I  have  endeavored  to  lay  a  foundation 
for,  in  what  I  have  now  offered  to  the  House,  is,  ' '  That  upon  the 


Sec.  3.]  Stephens  v.  white.  299 

state  of  the  evidence  given  for  the  plaintiff  in  this  ease,  it  was 
not  competent  to  the  defendants  to  insist  upon  the  jury  being 
discharged  from  giving  a  verdict,  by  demurring  to  the  evidence 
and  obliging  the  plaintiff  to  join  in  demurrer,  without  distinctly 
admitting  upon  the  record  every  fact  and  every  conclusion  which 
the  evidence  given  for  the  plaintiff  conduced  to  prove. ' ' 

Your  Lordships'  second  question  is,  Whether,  on  this  record, 
any  judgment  can  be  given?  To  which  we  answer,  that  we  con- 
ceive no  judgment  can  be  given.  The  examination  of  the  wit- 
nesses in  this  case  has  been  conducted  so  loosely,  or  this  demurrer 
has  been  so  negligently  framed,  that  there  is  no  manner  of  cer- 
tainty in  the  state  of  facts  upon  which  any  judgment  can  be 
founded.  I  will  not  detain  your  Lordships  with  particular 
observations  upon  the  state  of  the  facts  as  they  are  contained  in 
this  demurrer,  because  all  the  observations  I  could  have  made 
were  made  to  your  Lordships  from  within  your  House  at  the 
time  these  questions  were  put,  and,  I  believe,  felt  by  everybody 
that  heard  them. 

To  the  third  question,  In  case  no  judgment  can  be  given,  what 
ought  to  be  awarded?  We  answer,  that  there  ought  to  be  an 
award  of  a  venire  facias  de  novo:  the  issue  joined  between  these 
parties,  in  effect,  has  not  been  tried,  and  the  case  of  Wright  v. 
Pyndar  is  expressly  in  point,  that  another  venire  facias  should 
issue. 

Accordingly  a  venire  de  novo  was  awarded. 


STEPHENS  V.  WHITE. 

2  Washington  (Va.)  203.     [1796.] 

This  was  an  action  on  the  case  brought  by  the  appellant  against 
the  appellee  in  the  District  Court  of  Winchester,  The  declara- 
tion states  that  the  plaintiff  by  the  advice  of  the  defendant,  who 
was  an  attorney  authorized  to  practice  law,  commenced  in  Novem- 
ber, 1779,  in  the  County  Court  of  Frederick,  an  action  of  debt 
for  £62  against  B.  Chambers,  executor  of  William  Williams,  and 
then  and  there  employed  the  defendant  to  prosecute  the  said  suit 
to  judgment,  who  in  consideration  thereof  undertook  to  conduct 
the  same  to  the  best  of  his  skill  and  judgment ;  yet  the  defendant 
had  neglected  to  do  his  duty  as  an  attorney,  by  failing  to  file  a 


300  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

declaration,  whereby  the  judgment  obtained  in  the  said  suit  was 
reversed,  and  the  plaintiff  had  lost  his  said  debts  of  £62  and 
costs,  and  had  sustained  injury  to  £ — .    Plea  not  guilty. 

At  the  trial  the  defendant  filed  a  demurrer  to  the  evidence, 
stating  that  the  plaintiff  had  proved,  by  one  witness,  that  after 
the  judgment  against  Chambers  had  been  obtained,  the  defendant 
requested  the  witness  to  inform  the  plaintiff,  "that  he  had  re- 
covered a  judgment  against  Chambers  in  the  suit  in  which  the 
defendant  had  been  employed  by  the  plaintiff."  That  it  also 
appeared  from  the  docket  of  the  court  in  which  the  judgment 
was  obtained  that  in  July,  1784,  the  letter  W  was  placed  opposite 
to  the  said  suit,  and  the  clerk  of  that  court  proved  that  it  was 
customary  to  write  the  initial  letter  of  the  attorney 's  name  oppo- 
sie  to  the  suit  in  which  he  was  concerned ;  that  the  letter  W,  on 
that  docket,  was  intended  to  denote  that  the  defendant  appeared 
as  attorney  at  that  court  for  the  plaintiff.  The  same  witness 
declared  that  he  believed  Peter  Hogg,  then  a  practicing  attorney, 
ordered  the  said  suit  for  the  plaintiff,  but  of  this  he  was  not 
certain.  That  from  the  same  docket  it  appeared  the  suit  was 
instituted  in  November,  1779,  and  that  in  March,  1780,  no  attor- 
ney appeared  of  record  for  the  plaintiff;  that  the  suit  was  put 
to  issue  in  March,  1783,  and  it  did  not  appear  from  any  evidence 
that  the  defendant  appeared  as  attorney  in  that  suit  before  July, 
1784.  That  the  verdict  was  given  in  October,  1784,  in  favor  of 
the  plaintiff  for  £61  19s.  3d.  debt  and  £49  lis.  4d.  damages,  and 
that  the  same  was  written  on  the  back  of  an  award,  which  was 
the  only  paper  except  the  writ  now  filed  in  that  cause.  That 
the  judgment  was  reversed  with  costs  for  the  want  of  a  declara- 
tion. That  it  did  not  appear  that  P.  Hogg  was  marked  as  an 
attorney  upon  that  docket  after  the  year  1778.  That  Chambers 
always  had  been,  and  yet  is,  a  resident  in  the  state  of  Pennsyl- 
vania. 

The  demurrer  being  joined,  the  jury  found  a  verdict  for  the 
plaintiff,  and  assessed  his  damages  at  £146  18s.  7d.,  subject  to 
the  opinion  of  the  court  upon  the  demurrer  to  evidence. 

The  defendant  then  moved  in  arrest  of  judgment,  first,  be- 
cause there  is  no  consideration  stated  in  the  declaration,  and 
secondly,  because  no  damages  are  laid. 

Judgment  for  the  defendant,  from  which  plaintiff  appealed. 

Roane,  j.  *  *  *  The  third  point  respects  the  demurrer 
to  evidence.     The  judgment  to  be  given  is  that  the  evidence  is, 


Sec.  3.]  fowle  v.  Alexandria.  301 

or  is  not,  sufficient  to  maintain  the  issue  joined  on  the  part  of  the 
appellee.  Of  this  the  jury  are  the  only  competent  judges,  and 
therefore  if  the  case  be  withdrawn  from  their  decision  by  this 
mode  of  proceeding,  the  court  must  presume  any  and  every 
fact  which  the  jury  might  out  of  complicated  testimony  have 
inferred.  But  those  conclusions  of  fact  must  be  such  as  the 
jury  might  from  a  just  and  reasonable  construction  have  made, 
and  not  arbitrary  inferences,  or  such  as  might  be  drawn  from  a 
part  only  of  the  whole  evidence. 

The  charge  is  that  the  defendant  commenced  and  mismanaged 
the  suit.  The  evidence  of  the  first  witness,  if  it  stood  alone, 
might  correspond  with  this  charge,  since  a  jury  might  consider 
the  message  sent  to  the  appellant  as  having  reference  to  an  en- 
gagement before  made  to  commence  and  prosecute  the  suit.  But 
the  appellant,  not  satisfied  with  this,  produced  the  dockets  of 
the  court,  which  prove  strongly,  if  not  satisfactorily,  that  the 
appellee  was  not  retained  in  the  cause  until  July,  1784,  and  thus 
every  presumption  of  an  engagement  at  a  prior  period,  arising 
out  of  the  first  piece  of  testimony,  is  completely  demolished. 
With  an  accurate  attention  to  the  whole  evidence,  a  jury  could 
not  reasonably  and  properly  infer  an  original  engagement,  and 
consequently  could  not  consider  the  charge  laid  in  the  declaration 
as  being  sustained.  I  therefore  think  that  the  District  Court 
was  wrong  in  the  opinion  given  upon  the  motion  in  arrest  of 
judgment,  but  that  the  judgment  upon  the  demurrer  to  evidence 
is  correct.^ 


FOWLE  v.  COMMON  COUNCIL  OF  ALEXANDRIA. 

11  Wheat  on,  320.     [1826.] 

Mr.  Justice  Story  delivered  the  opinion  of  the  Court. 
This  is  a  writ  of  error  from  the  Circuit  Court  sitting  at  Alex- 
andria for  the  District  of  Columbia.     The  original  action  was 

1  Under  the  Virginia  practice  it  Green  v.  Judith,  5  Randolph,  1 ; 
does  not  appear  to  be  necessary  to  Hansbrough  v.  Thorn,  3  Leigh,  147. 
make  formal  admissions  on  the  rec-  This  appears  to  have  been  the  Eng- 
ord,  but  the  scope  of  the  admissions  lish  practice  just  prior  to  the  de- 
will    be    determined   by    the    Court.  cision  in  Gibson  v.  Hunter. 


802  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

brought  against  the  defendants  to  recover  damages  asserted  to 
have  been  sustained  by  the  plaintiff,  in  consequence  of  the  neglect 
of  the  defendants  to  take  due  bonds  and  security  from  one  Philip 
G.  Marsteller,  licensed  by  them  as  an  auctioneer  for  the  years 
1815,  1816,  1817,  and  1818,  according  to  the  express  provisions 
of  the  statute  in  this  behalf  enacted. 

At  the  trial  below,  upon  the  general  issue,  one  of  the  principal 
points  in  controversy  was,  whether  the  said  Marsteller  was,  in 
fact,  licensed  by  the  defendants  as  an  auctioneer  during  the  years 
above  stated;  and  both  parties  introduced  a  good  deal  of  evi- 
dence, for  the  purpose  of  supporting  or  repelling  the  presumption 
of  the  fact.  The  defendants  demurred  to  the  evidence  as  insuffi- 
cient to  maintain  the  plaintiff's  action,  and  the  record  itself 
contains  the  whole  evidence  introduced  at  the  trial,  as  well  as 
that  arising  from  the  testimony  of  witnesses  and  that  arising 
from  written  documents. 

There  is  no  joinder  in  demurrer  on  the  record,  which  is  prob- 
ably a  mere  defect  in  the  transcript,  as  the  court  proceeded  to  give 
judgment  upon  the  demurrer  in  favor  of  the  defendants.  With- 
out a  joinder  in  demurrer,  no  such  judgment  could  be  properly 
entered;  and  such  joinder  ought  not  to  have  been  required  or 
permitted  while  there  was  any  matter  of  fact  in  controversy 
between  the  parties. 

Indeed,  the  nature  of  the  proceedings  upon  a  demurrer  to  evi- 
dence seems  to  have  been  totally  misunderstood  in  the  present 
case.  It  is  no  part  of  the  object  of  such  proceedings  to  bring 
before  the  Court  an  investigation  of  the  facts  in  dispute,  or  to 
weigh  the  force  of  testimony  or  the  presumptions  arising  from 
the  evidence.  That  is  the  proper  province  of  the  jury.  The  true 
and  proper  object  of  such  a  demurrer  is  to  refer  to  the  Court 
the  law  arising  from  facts.  It  supposes,  therefore,  the  facts  to  be 
already  admitted  and  ascertained,  and  that  nothing  remains  but 
for  the  court  to  apply  the  law  to  those  facts.  This  doctrine  is 
clearly  established  by  the  authorities,  and  is  expounded  in  a  very 
able  manner  by  Lord  Chief  Justice  Eyre,  in  delivering  the 
opinion  of  all  the  judges  in  the  case  of  Gibson  v.  Hunter,  before 
the  House  of  Lords.  (2  H.  Bl.  Rep.  187.)  It  was  there  held, 
that  no  party  could  insist  upon  the  other  party's  joining  in 
demurrer,  without  distinctly  admitting,  upon  the  record,  every 
fact  and  every  conclusion  which  the  evidence  given  for  his  ad- 
versary conduced  to  prove.    If,  therefore,  there  is  parol  evidence 


SeO.  3.]  FOWIiE  V.    ALEXANDRIA.  303 

in  the  case,  which  is  loose  and  indeterminate,  and  may  be  applied 
with  more  or  less  effect  to  the  jury,  or  evidence  of  circumstances, 
which  is  meant  to  operate  beyond  the  proof  of  the  existence  of 
those  circumstances,  and  to  conduce  to  the  proof  of  other  facts, 
the  party  demurring  must  admit  the  facts  of  which  the  evidence 
is  so  loose,  indeterminate,  and  circumstantial,  before  the  court 
can  compel  the  other  side  to  join  therein. ^  And  if  there  should 
be  a  joinder  without  such  admission,  leaving  the  facts  unsettled 
and  indeterminate,  it  is  a  sufficient  reason  for  refusing  judgment 
upon  the  demurrer;  and  the  judgment,  if  any  is  rendered,  is 
liable  to  be  reversed  for  error.  Indeed,  the  case  made  for  a 
demurrer  to  evidence  is,  in  many  respects,  like  a  special  verdict. 
It  is  to  state  facts,  and  not  merely  testimony  which  may  conduce 
to  prove  them.  It  is  to  admit  whatever  the  jury  may  reasonably 
infer  from  the  evidence,  and  not  merely  the  circumstances  which 
form  a  ground  of  presumption.  The  principal  difference  be- 
tween them  is  that,  upon  a  demurrer  to  evidence,  a  court  may 
infer,  in  favor  of  the  party  joining  in  demurrer,  every  fact  of 
which  the  evidence  might  justify  an  inference;  whereas,  upon 
a  special  verdict,  nothing  is  intended  beyond  the  facts  found. 

Upon  examination  of  the  case  at  bar,  it  will  be  at  once  per- 
ceived that  the  demurrer  to  evidence,  tried  by  the  principles 
already  stated,  is  fatally  defective.  The  defendants  have  de- 
murred, not  to  facts,  but  to  evidence  of  facts;  not  to  positive 
admissions,  but  to  mere  circumstances  of  presumption  introduced 
on  the  other  side.  The  plaintiff  endeavored  to  prove,  by  circum- 
stantial evidence,  that  the  defendants  granted  a  license  to 
Marsteller  as  an  auctioneer.  The  defendants  not  only  did  not 
admit  the  existence  of  such  a  license,  but  they  introduced  testi- 
mony to  disprove  the  fact.  Even  if  the  demurrer  could  be  con- 
sidered as  being  exclusively  taken  to  the  plaintiff's  evidence,  it 
ought  not  to  have  been  allowed  without  a  distinct  admission  of 
the  facts  which  that  evidence  conduced  to  prove.  But  when  the 
demurrer  was  so  framed  as  to  let  in  the  defendants '  evidence,  and 
thus  to  rebut  what  the  other  side  aimed  to  establish,  and  to  over- 
throw the  presumption  arising  therefrom,  by  counter  presump- 
tions,  it  was  the  duty  of  the   Circuit   Court  to  overrule  the 

1  Where  the  evidence  is  direct  and  v.  Ry.,  85  111.  500,  where  judgment 

certain,   specific    admissions   on    the  for  defendant  was  affirmed,  though 

record   are   not   required.      Ditto   v.  the   demurrer   contained   no   express 

Ditto,  4  Dana,  502.    See  also,  Valtez  admissions. 


304  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

demurrer,  as  incorrect  and  untenable  in  principle.  The  question 
referred  by  it  to  the  court,  was  not  a  question  of  law,  but  of  fact. 
This  being,  then,  the  posture  of  the  case,  the  next  consideration 
is,  What  is  the  proper  duty  of  this  court,  sitting  in  error  ?  It  is, 
undoubtedly,  to  reverse  the  judgment  and  award  a  venire  facias 
de  novo.  We  may  say,  as  was  said  by  the  judges  in  Gibson  v. 
Hunter,  that  this  demurrer  has  been  so  incautiously  framed  that 
there  is  no  manner  of  certainty  in  the  state  of  facts  upon  which 
any  judgment  can  be  founded.  Under  such  a  predicament  the 
settled  practice  is  to  award  a  new  trial,  upon  the  ground  that  the 
issues  between  the  parties,  in  effect,  has  not  been  tried. 

Judgment  r-eversed  and  a  venire  facias  de  novo  awarded. 


WOODGATE  'S  ADMINISTRATRIX  v.  THRELKELD. 
3  Bibh  (Ky.),  527.     [ISU.] 

The  judgment  in  this  case  was  rendered  upon  a  demurrer  to 
evidence  tendered  by  the  defendant,  in  which  the  evidence  given 
on  both  sides  is  stated.  This  we  apprehend  cannot  regularly  be 
done.^  The  defendant  could  not  by  demurring  cause  his  own 
evidence  to  be  taken  for  true,  and  the  court  cannot  without  usurp- 
ing the  province  of  the  jury  decide  upon  its  truth.  In  principle 
it  is  not  less  absurd  for  a  party  to  demur  to  his  own  evidence, 
than  it  would  be  to  demur  to  his  own  plea ;  and  it  is  believed  that 
there  is  no  precedent  to  be  found  in  the  English  books  for  the 
former,  no  more  than  there  is  for  the  latter  practice. 

The  judgment  must  therefore  be  reversed  and  the  cause  re- 
manded that  a  venire  facias  de  novo  may  be  awarded,  etc. 

1  Accord,  Fritz  v.  Clark,   80  Ind.  the   demurrant,   are   taken   into    ac- 

591.  count.      Oeters    v.    Supreme    Lodge, 

In  Virginia   it   appears   that   evi-  98  Va.  201. 
dence  for  the  demurrant  can  be  eon-  But  see  Hart  v.  Callaway,  2  Bibb, 

sidered  so  far  as  it  is  not  impeached  460  (1811),  holding  it  error  to  com- 

and   not   inconsistent  with   the   evi-  pel  a  joinder  in  demurrer  after  the 

dence  demurred  to.    Green  v.  Judith,  demurrant   had    introduced   his   evi- 

5   Eandolph   1.      And   parts   of   the  dence. 
evidence  demurred  to,  favorable  to 


Sec.  3.]  thornton  v.  bank  of  Washington.  305 

THORNTON  v.  BANK  OF  WASHINGTON. 

3  Peters,  36.     [1830.] 

Error  to  the  Circuit  Court  of  the  County  at  Washington,  in 
the  District  of  Columbia. 

This  case  was  brought  before  the  court  to  reverse  the  judgment 
of  the  Circuit  Court  on  a  demurrer  to  the  evidence  offered  by 
the  defendants  in  error,  the  plaintiffs  below,  to  sustain  a  claim 
on  Mr.  Thornton  as  indorser  on  a  promissory  note  discounted  at 
the  Bank  of  Washington  for  the  benefit  of  one  Bailey,  the  maker 
of  the  note. 

The  facts  of  the  case  are  stated  in  the  opinion  of  the  court,  de- 
livered by  Mr.  Justice  Story. 

Mr.  Justice  Story,  after  stating  the  facts,  delivered  the  opinion 
of  the  court : 

This  case  comes  before  us  on  a  demurrer  to  the  evidence  in 
the  court  below,  taken  by  the  original  defendant,  now  plaintiff 
in  error ;  and  this  in  our  judgment  is  very  important  to  be  con- 
sidered in  the  determination  of  the  case.  The  party  who  demurs 
to  evidence  seeks  thereby  to  withdraw  the  consideration  of  the 
facts  from  the  jury,  and  is  therefore  bound  to  admit  not  only 
the  truth  of  the  evidence  as  given,  but  every  fact  which  that  evi- 
dence may  legally  conduce  to  prove  in  favor  of  the  other  party. 
And  if  upon  any  view  of  the  facts  the  jury  might  have  given  a 
verdict  against  the  party  demurring,  the  court  is  also  at  liberty 
to  give  judgment  against  him. 

The  defense  set  up  against  this  action  by  the  defendant  is,  that 
the  transaction  is  usurious,  within  the  meaning  of  the  statute 
of  Maryland  against  usury,  which  (it  is  admitted)  is  sub- 
stantially like  the  English  statute  on  the  same  subject.  To 
sustain  the  defense,  it  has  been  urged  that  the  receipts  of  the 
interest  in  advance  for  sixty-four  days  upon  the  discount  of  the 
note  is  usury.  But  we  are  all  of  opinion  that  the  taking  of  inter- 
est in  advance  upon  the  discount  of  notes  in  the  usual  course 
of  business  by  a  ])ank  is  not  usury.  The  doctrine  has  been  long 
settled,  and  is  not  now  open  for  controversy.  The  taking  of  the 
interest  for  sixty-four  days  is  not  usury,  if  the  note,  according 
to  the  custom  and  usage  in  the  banks  at  Washington,  was  not 
due  and  payable  until  the  sixty-fourth  day.  That  custom  was 
completely  established,  not  only  by  the  evidence  in  the  present 

H.  T.  p.— 20 


306  CONDUCT    OF   THE   TRIAL,  [ChAP.  IV. 

case,  but  b}^  that  in  Renner  v.  The  Bank  of  Columbia,  9  Wheat. 
Rep.  581,  which  is  referred  to  in  this  record.  In  the  latter  case 
it  was  expressly  held  by  the  court,  that  under  that  custom  the 
note  was  not  due  and  payable  before  the  sixty-fourth  day,  for 
until  that  time  the  maker  could  not  be  in  default. 

Then,  again,  it  is  argued,  that  here  there  have  been  successive 
renewals  of  the  note,  or  rather  successive  notes  given  by  way  of 
renewal  of  the  original  note,  and  that  these  renewals  have  been 
on  the  sixty-third  day,  and  the  money  credited  on  that  day,  on 
account  of  the  existing  note ;  and  thus  in  effect  sixty-four  days ' 
interest  has  been  taken  upon  loans  for  sixty-three  days  only.  If 
there  had  been  proved  any  contract  between  the  bank  and  the 
party  for  whose  benefit  the  original  discount  was  made,  that  the 
original  note  should  be  so  renewed  from  time  to  time,  and  the 
extra  day's  interest  thereupon  be  taken  by  the  bank,  so  that  the 
bank  would  have  been  bound  to  make  the  renewal,  and  the  party 
would  have  been  bound  to  renew  and  not  to  pay  the  note  at  ma- 
turity, there  would  have  been  strong  grounds^  on  which  to  rest 
the  argument.  But  the  difficulty  is  that  no  such  contract  is  to 
be  found  in  the  evidence,  and  the  party  demurring  to  the  evi- 
dence asks  the  court  to  infer  it  from  facts  which  do  not  neces- 
sarily import  it,  and  may  well  admit  of  an  explanation  favorable 
to  the  other  party.  It  is  quite  consistent  with  every  fact  in  the 
case  that  the  original  discount  may  have  been  made  without  any 
such  contract,  and  that  the  application  for  the  renewals  may  have 
been  made  from  time  to  time  by  the  party  interested  for  his  own 
accommodation,  and  without  any  previous  understanding  or  co- 
operation on  the  part  of  the  bank.  For  aught  that  appears,  he 
was  at  liberty  to  have  paid  the  original  note,  or  any  one  of  those 
afterwards  given,  at  the  time  when  it  became  due.  If  of  choice 
he  had  paid  it  on  the  sixty-third  day  instead  of  the  sixty-fourth, 
there  is  no  pretense  to  say  that  it  would  have  been  a  case  of 
usury.  If,  instead  of  payment,  he  offers  a  new  note  for  discount, 
for  the  purpose  of  applying  the  proceeds  to  the  payment  or  with- 
drawal of  the  former  note,  under  the  like  circumstances,  the  case 
is  not  substantially  varied.  Each  note  is  considered  as  a  distinct 
substantive  transaction.  If  no  more  than  the  legal  interest  is 
taken  upon  the  time  the  new  note  has  to  run,  the  actual  applica- 
tion of  the  proceeds  of  the  new  note  to  the  payment  of  the  former 
note,  before  it  becomes  due,  does  not  of  itself  make  the  transac- 
tion usurious.     Something  more  must  occur.     There  must  be  a 


Sec.  3.]  thornton  v.  bank  of  Washington.  307 

contract  between  the  bank  and  the  party  at  the  time  of  such 
discount,  that  the  party  shall  not  have  the  use  or  benefit  of  the 
proceeds  until  the  former  note  becomes  due,  or  that  the  bank 
shall  have  the  use  and  benefit  of  them  in  the  meantime.  Such  a 
contract  being  illegal  it  not  to  be  presumed ;  it  must  be  established 
in  evidence.  The  argument  requires  the  court  to  infer  such 
illegality  from  circumstances  in  their  own  nature  equivocal  and 
susceptible  of  different  interpretations;  and  this  in  favor  of  the 
party  demurring  to  the  evidence.  Even  if  the  jury  might  have 
made  such  an  inference  from  the  evidence,  we  think  it  ought  not 
to  be  made  by  the  court;  for  the  rule  of  law  requires  the  court 
in  such  a  case  to  make  every  inference  and  presumption  in  favor 
of  the  other  party  which  the  jury  might  legally  deduce  from  the 
evidence;^  nor  is  this  any  hardship  upon  the  party  demurring 
to  the  evidence,  for  it  is  his  own  choice  to  withdraw  from  the 
jury,  to  whom  it  properly  belongs,  the  consideration  of  the  facts 
which  he  relies  on  as  presumptive  of  usury. 

Upon  the  other  point  suggested  in  the  cause,  whether  banks 
are  within  the  statute  of  usury,  we  entertain  no  doubt  that  they 
are.  But,  for  the  reasons  already  stated,  we  are  of  opinion  that 
the  judgment  below  ought  to  be  affirmed. 

1  Morton,  J.,  in  Copeland  v.  New  prima  facie  case,  the  defendants  may 
England  Ins.  Co.,  22  Pickering,  135 :  demur.  But  if  they  wish  to  set  up 
"The  evidence  offered  in  this  case  any  facts  in  defense,  they  must  re- 
tends  to  show,  and  undoubtedly  does  sort  to  the  jury  to  have  them  estab- 
show,  that  the  brig  insured,  in  a  lished.  The  depositions  introduced 
squall  (not  a  severe  one  to  be  sure),  by  the  plaintiffs  were  taken  by  the 
ran  upon  a  coral  reef  and  was  defendants,  and  thus  the  facts  may 
totally  lost.  This  proof,  by  itself,  be  presented  in  an  order  and  a  form 
clearly  would  support  the  plaintiff 's  most  favorable  to  the  latter.  The 
action.  But  the  defendants  contend  defendants  too,  by  demurring,  admit 
that  the  testimony  of  the  same  wit-  the  facts  which  the  evidence  con- 
r.esses  tends  to  show,  that  the  ves-  duces  to  prove  for  the  plaintiffs,  and 
Bel  was  run  on  shore  intentionally  or  cannot  avail  themselves  of  such  as 
through  the  gross  incapacity  of  the  it  tends  to  show  for  the  defendants, 
master.  Now  these  are  distinct  sub-  The  plaintiffs,  by  joining  in  the  de- 
stantive  facts,  which  the  defendants  murrer,  did  not  admit  the  truth  of 
wish  to  establish.  It  is  true  the  that  part  of  the  testimony  which  is 
evidence  tends  strongly,  very  favorable  to  the  defendants,  much 
strongly,  to  prove  them.  But  the  less  any  inferences  which  may  be 
defendants  cannot  avail  themselves  drawn  from  it.  If  the  defendants 
of  these  grounds  of  defense  on  a  wish  to  set  up  any  facts  to  exonerate 
demurrer  to  the  evidence.  If  the  or  discharge  them,  they  must  look  to 
plaintiffs'  evidence  does  not  show  a  the  jury  to  establish  them." 


308  CONDUCT    OP   THE   TRIAL.  [ChAP.  IV, 

COOLEY  V.  GALYON. 

109  Tennessee,  1.     [1902.] 

Mr,  Justice  Shields  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  damages  for  alleged  slanderous 
words  spoken  by  Cooley,  the  plaintiff  in  error,  of  and  concerning 
Galyon,  the  defendant  in  error,  while  being  examined  as  a  witness 
before  the  master  upon  a  reference  to  ascertain  damages  resulting 
from  the  wrongful  suing  out  of  an  injunction  issued  in  the  case 
of  Eckle  et  al.  against  the  Florence  Crittendon  Home,  lately 
pending  in  the  Chancery  Court  of  Knox  county.  Galyon  and 
Cooley  were  both  contractors  and  builders  residing  in  Knoxville, 
and  neither  was  a  party  to  the  chancery  cause. 

The  declaration  contains  two  counts — one  in  slander  and  one 
in  libel — both  predicated  upon  the  same  words,  which  are  here- 
inafter set  out,  in  stating  the  averments  of  a  special  plea  filed 
by  the  defendant.  It  is  averred  that  the  words  were  falsely  and 
maliciously  spoken  and  published  of  and  concerning  the  plaintiff, 
with  respect  to  his  occupation  and  business  as  a  builder  and  con- 
tractor, to  his  damage,  five  thousand  dollars. 

The  defendant  filed  a  plea  of  not  guilty,  and  a  special  plea 
in  which  he  says  that  he  uttered  the  language  complained  of 
while  being  examined  as  a  witness  in  a  suit  pending  in  the 
Chancery  Court  of  Knox  county,  styled  "G.  B.  Eckle  et  al.  v. 
Florence  Crittendon  Home,"  in  answer  to  questions  put  to  him 
by  counsel  in  the  said  cause.  *  *  *  "While  this  defense 
could  have  been  made  under  the  general  issue,  it  could  also  be 
made  by  special  plea.  Shadden  v.  McElwee,  86  Tenn.  148  (5 
S.  W.  602;  61  Am.  St,  Rep.  821). 

Issue  was  joined,  and  the  case  was  tried  by  the  circuit  judge 
and  a  jury,  and  upon  the  trial  the  plaintiff  introduced  the  so- 
licitor of  the  complainants  in  the  cause  of  Eckle  and  others 
against  the  Florence  Crittendon  Home,  as  a  witness  in  his  behalf, 
and  had  him  identify  the  original  bill,  the  answer,  the  decree 
denying  the  complainants  relief,  and  ordering  the  reference  to 
the  master  to  ascertain  the  damages  sustained  by  the  defendant 
by  reason  of  the  wrongful  issuance  of  the  injunction,  and  the 
deposition  given  by  defendant,  Cooley,  in  the  chancery  cause; 
the  original  papers  being  used  by  consent,  all  of  which  were  then 
read  in  evidence  by  the  plaintiff. 


Sec.  3,]  cooley  v.  galton.  309 

Upon  cross-examination  the  witness  identified  the  depositions 
of  other  witnesses  taken  in  the  cause,  the  report  of  the  master 
allowing  damages  to  the  defendant  in  that  cause,  and  the  decree 
confirming  the  same,  which  were  then  read  to  the  jury  by  defend- 
ant's  attorney.  Other  evidence  was  introduced  by  the  plaintiff 
tending  to  prove  that  the  defendant  gave  the  deposition  read, 
and  entertained  malice  toward  the  plaintiff. 

The  proof  introduced  by  the  plaintiff  sustained  the  averments 
of  the  special  plea,  and  upon  the  conclusion  of  plaintiff's  evidence 
the  defendant  filed  a  demurrer,  in  proper  form,  thereto,  which 
was  overruled  by  the  court,  and  the  damages  of  the  plaintiff 
assessed  by  the  iury  at  five  hundred  dollars,  and  judgment  given 
therefor;  and  the  defendant  has  brought  the  case  before  this 
court,  and  assigns  error. 

For  the  plaintiff  it  is  said  that  the  defendant,  by  calling  out 
and  reading  in  evidence  those  portions  of  the  record  in  the 
chancery  cause  which  the  plaintiff  had  not  offered,  introduced 
original  evidence  in  his  behalf,  and  lost  his  right  to  demur  to 
the  evidence  of  the  plaintiff,  and  that  for  this  reason  the  action 
of  the  court  in  overruling  the  demurrer  was  correct,  regardless 
of  other  questions.  It  is  true  that,  if  a  defendant  introduce  any 
original  evidence  in  his  behalf,  he  cannot  demur  to  the  evidence 
of  the  plaintiff ;  but  can  it  be  said  that  the  evidence  elicited  by 
the  defendant  in  this  case  was  original  evidence?  Clearly  not. 
The  plaintiff  had  introduced  part  of  the  record  in  the  chancery 
cause,  and  it  was  perfectly  competent  for  the  defendant  to  call 
for  the  remainder  of  it.  It  would  have  been  the  better  practice 
to  have  required  the  plaintiff  to  read  the  entire  record;  but, 
having  failed  to  do  so,  the  defendant  had  the  right  to  call  for 
the  rest  of  it,  and  examine  the  witness  then  upon  the  stand  in 
relation  to  it.  This  was  legitimate  cross-examination,  in  the 
strictest  sense,  as  the  evidence  brought  out  related  to  and  was 
germane  to  that  elicited  in  the  examination  in  chief.  But  whether 
germane  or  not,  the  defendant  had  the  right  to  bring  out  upon 
cross-examination  any  matter  pertinent  to  the  issue ;  the  rule  in 
Tennessee  being  that  the  cross-examination  is  only  limited  by 
relevancy  and  competency  of  the  evidence  sought  to  be  intro- 
duced, and  the  defendant,  by  exercising  this  right,  is  not  pre- 
cluded from  demurring  to  the  evidence.  This  question  was  fully 
discussed  in  the  case  of  Sands  v.  Railway  Co.,  108  Tenn.  1  (64 
S.  W.  478),  and  the  rule  there  stated  as  here  applied. 


310  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

The  question  upon  which  this  case  must  be   determined  is 

whether  the  language  imputed  to  the  defendant  is  actionable. 

«     *     * 

Applying  these  principles  to  this  case,  the  question  is  not 
whether  the  words  spoken  by  the  defendant  were  false  and 
malicious,  but  were  they  spoken  in  a  judicial  proceeding,  and 
were  they  relevant  and  pertinent  to  the  subject  of  inquiry  in 
that  proceeding,  or  responsive  to  questions  propounded  to  the 
defendant  by  counsel  while  being  examined  therein  as  a  witness  ? 
If  they  were,  they  are  absolutely  privileged,  and  the  plaintiff's 
action  must  fail. 

That  the  words  were  spoken  in  the  course  of  a  judicial  pro- 
ceeding is  conceded;  and  the  only  question  that  remains  to  be 
determined  is.  Were  the  answers  of  the  witness  pertinent  to  the 
inquiry  or  responsive  to  the  question  asked  by  the  counsel  ?  The 
issue  being  tried  in  the  chancery  cause,  in  relation  to  which  the 
defendant  was  examined  as  a  witness  for  the  Florence  Crittendon 
Home,  was  what  damages  it  had  sustained  by  being  delayed  in 
building  a  house  by  the  injunction  issued  against  it ;  and  defend- 
ant was  called  to  testify  as  to  the  difference  in  the  cost  of  material 
and  construction  at  the  time  the  injunction  was  issued  and  when 
the  bill  was  dismissed,  as  bearing  upon  this  issue.  The  plaintiff, 
Galyon,  had  offered  to  build  the  house  for  the  same  price  for 
which  the  defendant  had  contracted  it  when  enjoined,  and  the 
question  arose  whether  he  was  a  reliable  contractor,  and  would 
and  could  comply  with  a  contract  to  do  the  building  if  it  were 
let  to  him;  and,  with  a  view  of  proving  this,  the  witness  was 
cross-examined  by  the  solicitor  for  the  complainants,  and  made 
the  answers  of  which  the  plaintiff  complains. 

These  answers  were  clearly  pertinent  to  the  investigation.  If 
Mr.  Galyon  was  a  reliable  contractor,  his  proposition  to  build 
the  house  tended  to  prove  that  the  defendant  had  sustained  no 
loss;  and,  if  he  was  unreliable,  the  effect  of  the  proposition  as 
evidence  was  weakened.  The  answers  were  also  fairly,  and  evi- 
dently intended  to  be  directly,  responsive  to  the  questions  pro- 
pounded to  the  witness.  If  the  plaintiff  did  not  pay  for  the 
material  he  used  in  building,  or  did  not  use  the  character  of 
material  called  for  in  his  contract,  he  was  not  a  reliable  con- 
tractor. 

"We  are  of  the  opinion  that  the  words  spoken  by  the  defendant 
of  the  plaintiff  were,   on  account  of  the   occasion,   absolutely 


Sec.  4.]  bushell's  case.  311 

privileged,  and  that  no  action  can  be  maintained  upon  them. 
There  is,  therefore,  no  evidence  to  sustain  a  verdict  against  the 
defendant,  and  the  demurrer  to  the  plaintiff's  evidence  should 
have  been  allowed.  ^ 

The  judgment  of  the  Circuit  Court  is  reversed,  the  demurrer 
sustained,  and  the  plaintiff's  suit  dismissed. 


Section  4.     Direction  of  the  Verdict. 
(a)   When  Proper. 

BUSHELL'S  CASE. 

Vaughan,  135.     [1670.] 

The  King's  Writ  of  Habeas  Corpus,  dat.  9  die,  Novembris, 
22  Car.  2,  issued  out  of  this  court,  directed  to  the  then  sheriffs 
of  London,  to  have  the  body  of  Edward  Bushell,  by  them  de- 
tained in  prison,  together  with  the  day  and  cause  of  his  caption 
and  detention,  on  Friday  then  next  following,  before  this  court, 
to  do  and  receive  as  the  court  should  consider;  as  also  to  have 
then  the  said  writ  in  court. 

[The  sheriffs  returned  that  the  prisoners  were  held  under 
the  following  order  of  commitment  made  at  a  session  of  the 
Court  of  Oyer  and  Terminer:] 

Ordinatum  est  per  Curiam  hie  quod  Finis  40  Marcarum  sep- 
aratim  ponatur  super  Edwardum  Bushell,  and  other  eleven  per- 
sons particularly  named,  and  upon  every  of  them,  being  the  twelve 
jurors  then  and  there  sworn,  and  charged  to  try  several  issues, 
then  and  there  joined  between  our  Lord  the  King  and  William 
Penn  and  William  Meade,  for  certain  trespasses,  contempts,  un- 
lawful assemblies  and  tumults,  made  and  perpetrated  by  the 
said  Penn  and  Mead,  together  with  divers  other  unknown  persons, 
to  the  number  of  three  hundred,  unlawfully  and  tumultuously 
assembled  in  Grace-Church  street,  in  London,  to  the  disturbance 
of  the  peace,  whereof  the  said  Penn  and  Mead  were  then  indicted 

1  See  also,  Corbett  v.  Smith,  108  tributory  negligence)  ;  Gerity  v. 
Tenn.  368  (assumption  of  risk)  ;  Haley,  29  W.  Va.  98  (contributory 
Fowler  v.  Ky.,  18  W.  Va.  579  (con-       negligence). 

\ 


312  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

before  the  said  justices.  Upon  which  indictment  the  said  Penn 
and  Mead  pleaded  they  were  not  guilty.  For  that  they  the  said 
jurors  then  and  there  the  said  William  Penn  and  William  Mead 
of  the  said  trespasses,  contempts,  unlawful  assemblies  and 
tumults,  Contra  Legem  hujus  lUgni  Angliae,  &  contra  plenam 
&  manifest  am  Evidentiam,  &  contra  directionem  Curiae  in 
materia  Legis,  hie,  de  &  super  p'missis  eisdem  Juratorihus 
versus  p'fatos  Will.  Penn  &  Will.  Mead,  in  Curia  hie  aperte 
datam,  &  declaratam  de  p'missis  iis  impositis  in  Indictamento 
p'dicto  acquietaverunt,  in  contemptum  D'ni  Regis  nunc, 
Legumque  Suaruni,  &  ad  magnum  inpedimentum  &  ohstruc- 
tionem  Justitiae,  necnon  ad  malum  exemplum  omnium  aliorum 
Juratorum  in  consimiU  ca-su  delinquentium.  Ac  super  inde  modo 
niter  ins  ordinatum  est  per  Cur'  hie  quod  p'fatu^  Edw.  Bushell 
capiatur  (&  comniittatur  Gaolae  dicti  D'ni  Regis  de  Newgate, 
ibidem  remansurus  quousque  solvat  dicto  D'no  Regi  40  Marcas  p' 
fine  suo  p'dicto,  veldeliberatus  fuerit,  per  dehitum  legis  cursum.^ 

Vaughan,  C.  J.  *  *  *  I  conclude,  therefore,  that  this 
retorn,  charging  the  prisoners  to  have  acquitted  Penn  and  Mead, 
against  full  and  manifest  evidence  first ;  and  next,  without  saying 
that  they  did  not  know  and  believe  that  evidence  to  be  full  and 
manifest  against  the  indicted  persons,  is  no  cause  of  fine  or  im- 
prisonment. 

And  by  the  ^vay  I  must  here  note,  that  the  verdict  of  a  jury 
and  evidence  of  a  witness  are  very  different  things,  in  the  truth 
or  falsehood  of  them.  A  witness  swears  but  to  what  he  hath 
heard  or  seen  generally,  or  more  largely  to  what  hath  fallen 
under  his  senses ;  but  a  juryman  swears  to  what  he  can  infer  and 
conclude  from  the  testimony  of  such  witnesses,  by  the  act  and 
force  of  his  understanding,  to  be  the  fact  inquired  after ;  which 
differs  nothing  in  the  reason,  though  much  in  the  punishment, 
from  what  a  judge,  out  of  various  cases  considered  by  him,  infers 
to  be  the  law  in  the  question  before  him. 

We  come  now  to  the  next  part  of  the  retorn,  viz.,  that  the 
jury  acquitted  those  indicted  against  the  direction  of  the  court 
in  matter  of  law,  openly  given  and  declared  to  them  in  court. 

1.  The  w^ords,  that  the  jury  did  acquit  against  the  direction 
of  the  court  in  matter  of  law,  literally  taken,  and  de  piano,  are 

1  The  statement  li(is  been  con- 
densed, and  parts  of  the  opinion 
omitted — Ed. 


Sec.  4.]  bushell's  case.  313 

insignificant,  and  not  intelligible ;  for  no  issue  can  be  joined  of 
matter  in  law,  no  jury  can  be  charged  with  the  tryal  of  matter  in 
law  barely,  no  evidence  ever  was,  or  can  be  given  to  a  jury  of 
what  is  law  or  not;  nor  no  such  oath  can  be  given  to,  or  taken 
by  a  jury,  to  try  matter  in  law,  nor  no  attaint  can  lie  for  such 
a  false  oath. 

Therefore  we  must  take  oif  this  veil  and  color  of  words,  which 
make  a  show  of  being  something,  and  in  truth  are  nothing. 

If  the  meaning  of  these  words,  finding  against  the  direction 
of  the  court  in  r.iatter  of  law,  be,  that  if  the  judge  having  heard 
the  evidence  given  in  court  (for  he  knows  no  other)  shall  tell 
the  jury  upon  this  evidence,  the  law  is  for  the  plaintiff,  or  for 
the  defendant,  and  you  are  under  the  pain  of  fine  and  imprison- 
ment to  find  accordingly,  then  the  jury  ought  of  duty  so  to  do : 
Every  man  sees  that  the  jury  is  but  a  troublesome  delay,  great 
charge,  and  of  no  use  in  determining  right  and  wrong,  and  there- 
fore the  tryals  by  them  may  be  better  abolished  than  continued ; 
which  were  a  strange  new-found  conclusion,  after  a  tryal  so  cele- 
brated for  many  hundreds  of  years. 

For  if  the  judge,  from  the  evidence,  shall  by  his  own  judgment 
first  resolve  upon  any  tryal  what  the  fact  is,  and  so  knowing  the 
fact,  shall  then  resolve  what  the  law  is,  and  order  the  jury  penally 
to  find  accordingly :  what  either  necessary  or  convenient  use  can 
be  fancied  of  juries,  or  to  continue  tryals  by  them  at  all  ? 

And  how  the  jury  should  in  any  other  manner,  according  to 
the  course  of  tryals  used,  find  against  the  direction  of  the  court 
in  matter  of  law,  is  really  not  conceptible. 

True  it  is,  if  it  fall  out  upon  some  special  tryal  that  the  jury 
being  ready  to  give  their  verdict,  and  before  it  is  given  the  judge 
shall  ask,  Whether  they  find  such  a  particular  thing  propounded 
by  him  ?  or  whether  they  find  the  matter  of  fact  to  be  as  such 
a  witness  or  witnesses  have  deposed  ?  and  the  jury  answer,  They 
find  the  matter  of  fact  to  be  so;  if  then  the  judge  shall  declare, 
The  matter  of  fact  being  by  you  so  found  to  be,  the  law  is  for 
the  plaintiff,  and  you  are  to  find  accordingly  for  him. 

If  notwithstanding  they  find  for  the  defendant,  this  may  be 
thought  a  finding  in  matter  of  law  against  the  direction  of  court ; 
for  in  that  case  the  jury  first  declare  the  fact  as  it  is  found  by 
themselves,  to  which  fact  the  judge  declares  how  the  law  is  con- 
sequent. 

And  this  is  ordinary  when  the  jury  find  unexpectedly  for  the 


314  CONDUCT    OP   THE   TRIAL.  [ChAP.  IV. 

plaintiff  or  defendant,  the  judge  will  ask,  How  do  you  find  such 
a  fact  in  particular  ?  And  upon  their  answer,  he  will  say.  Then 
it  is  for  the  defendant,  though  they  found  for  the  plaintiff,  or 
e  contrario;  and  thereupon  they  rectifie  their  verdict. 

And  in  these  eases  the  jury,  and  not  the  judge,  resolve  and  find 
what  the  fact  is. 

Therefore  always  in  discreet  and  lawful  assistance  of  the  jury, 
the  judge's  direction  is  hypothetical,  and  upon  supposition,  and 
not  positive,  and  upon  coercion,  viz..  If  you  find  the  fact  thus 
(leaving  it  to  them  what  to  find),  then  you  are  to  find  for  the 
plaintiff ;  but  if  you  find  the  fact  thus,  then  it  is  for  the  defendant. 

But  in  the  case  propounded  by  me,  where  it  is  possible  in  that 
special  manner,  the  jury  may  find  against  the  direction  of  the 
court  in  matter  of  law,  it  will  not  follow  they  are  therefore  finable ; 
for  if  an  attaint  will  lie  upon  the  verdict  so  given  by  them,  they 
ought  not  to  be  fined  and  imprisoned  by  the  judge  for  that  ver- 
dict; for  all  the  judges  have  agreed  upon  a  full  conference  at 
Serjeants  Inn  in  this  ease.  And  it  was  formerly  so  agreed 
by  the  then  judges,  in  a  case  where  Justice  Hide  had  fined  a  jury 
at  Oxford  for  finding  against  their  evidence  in  a  civil  cause, 
that  a  jury  is  not  finable  for  going  against  their  evidence  where 
an  attaint  lies ;  for  if  an  attaint  be  brought  upon  that  verdict,  it 
may  be  affirmed  and  found  upon  the  attaint  a  true  verdict,  and 
the  same  verdict  cannot  be  a  false  verdict;  and  therefore  the 
jury  fined  for  it  as  such  by  the  judge,  and  yet  no  false  verdict, 
because  affirmed  upon  the  attaint. 

But  no  ease  can  be  offered,  either  before  attaints  granted  in 
general,  or  after,  that  ever  a  jury  was  punished  by  fine  and  im- 
prisonment by  the  judge,  for  not  finding  according  to  their 
evidence  and  his  direction,  until  Popham's  time;  nor  is  there 
clear  proof  that  he  ever  fined  them  for  that  reason,  separated 
from  other  misdemeanor.  If  juries  might  be  fined  in  such  ease 
before  attaints  granted,  why  not  since?  For  no  statute  hath 
taken  that  power  from  the  judge.  But  since  attaints  granted,  the 
judges  resolved  they  cannot  fine  where  the  attaint  lies,  therefore 
they  could  not  fine  before.  Sure  this  latter  age  did  not  first  dis- 
cover that  the  verdicts  of  juries  were  many  times  not  according 
to  the  judge 's  opinion  and  liking. 

But  the  reasons  are,  I  conceive,  most  clear,  that  the  judge 
could  not,  nor  can,  fine  and  imprison  the  jury  in  such  cases. 

Without  a  fact  agreed,  it  is  as  impossible  for  a  judge  or  any 


Sec.  4.]  bushell's  case.  315 

other  to  know  the  law  relating  to  that  fact,  or  direct  concerning 
it,  as  to  know  an  accident  that  hath  no  subject. 

Hence  it  follows,  that  the  judge  can  never  direct  what  the  law 
is  in  any  matter  controverted,  without  first  knowing  the  fact; 
and  then  it  follows,  that  without  his  previous  knowledge  of  the 
fact,  the  jury  cannot  go  against  his  direction  in  law,  for  he  could 
not  direct. 

But  the  judge,  qua  judge,  cannot  know  the  fact  possibly,  but 
from  the  eviden-e  which  the  jury  have,  but  (as  will  appear)  he 
can  never  know  what  evidence  the  jury  have,  and  consequently 
he  cannot  know  the  matter  of  fact,  nor  punish  the  jury  for  going 
against  their  evidence,  when  he  cannot  know  what  their  evi- 
dence is. 

It  is  true,  if  the  jury  were  to  have  no  other  evidence  for  the 
fact  but  what  is  deposed  in  court,  the  judge  might  know  their 
evidence,  and  the  fact  from  it,  equally  as  they,  and  so  direct 
what  the  law  were  in  the  case,  though  even  then  the  judge  and 
jury  might  honestly  differ  in  the  result  from  the  evidence,  as  well 
as  two  judges  may,  which  often  happens. 

But  the  evidence  which  the  jury  have  of  the  fact  is  much  other 
than  that :  for, 

1.  Being  returned  of  the  vicinage  whence  the  cause  of  action 
ariseth,  the  law  supposeth  them  thence  to  have  sufficient  knowl- 
edge to  try  the  matter  in  issue  (and  so  they  must),  though  no 
evidence  were  given  on  either  side  in  court ;  but  to  this  evidence 
the  judge  is  a  stranger. 

2.  They  may  have  evidence  from  their  own  personal  knowledge, 
by  which  they  may  be  assured,  and  sometimes  are,  that  what  is 
deposed  in  court  is  absolutely  false ;  but  to  this  the  judge  is  a 
stranger,  and  he  knows  no  more  of  the  fact  than  he  hath  learned 
in  court,  and  perhaps  by  false  depositions,  and  consequently 
knows  nothing. 

3.  The  jury  may  know  the  witnesses  to  be  stigmatized  and  in- 
famous, which  may  be  unknown  to  the  parties,  and  consequently 
to  the  court. 

4.  In  many  cases  the  jury  are  to  have  view  necessarily,  in 
many  by  consent,  for  their  better  information ;  to  this  evidence 

likewise  the  judge  is  a  stranger. 

************** 

7.  To  what  end  is  the  jury  to  be  returned  out  of  the  vicinage 
whence    the    cause    of    action    ariseth?      To    what    end    must 


316  CONDUCT    OP   THE   TRIAL.  [ChAP,  IV. 

hundredors  be  of  the  jury,  whom  the  law  supposeth  to  have 
nearer  knowledge  of  the  fact  than  those  of  the  vicinage  in  gen- 
eral? To  what  end  are  they  challenged  so  scrupulously  to  the 
array  and  poll?  To  what  end  must  they  have  such  a  certain 
freehold,  and  be  prohi  and  legates  homines,  and  not  of  affinity 
with  the  parties  concerned?  To  what  end  must  they  have  in 
many  cases  the  view,  for  their  exacter  information  chiefly  ?  To 
what  end  must  they  undergo  the  heavy  punishment  of  the  villain- 
ous judgment,  if  after  all  this  they  implicitly  must  give  a  verdict 
by  the  dictates  and  authority  of  another  man,  under  pain  of  fines 
and  imprisonment,  when  sworn  to  do  it  according  to  the  best 
of  their  own  knowledge? 

A  man  cannot  see  by  another's  eye,  nor  hear  by  another's  ear, 
no  more  can  a  man  conclude  or  infer  the  thing  to  be  resolved  by 
another's  understanding  or  reasoning;  and  though  the  verdict 
be  right  the  jury  give,  yet  they  being  not  assured  it  is  so  from 
their  own  understanding,  are  forsworn,  at  least  in  foro  con- 
scientiae. 

9.  It  is  absurd  a  jury  should  be  fined  by  the  judge  for  going 
against  their  evidence,  when  he  who  fineth  knows  not  what  it  is, 
as  where  a  jury  find  without  evidence  in  court  of  either  side,  so 
if  the  jury  fijid  upon  their  own  knowledge ;  as  the  course  is  if  the 
defendant  plead  solvit  ad  diem  to  a  bond  proved,  and  offers  no 
proof,  the  jury  is  directed  to  find  for  the  plaintiff,  unless  they 
know  payment  was  made  of  their  own  knowledge,  according  to 
the  plea. 

And  it  is  as  absurd  to  fine  a  jury  for  finding  against  their 
evidence,  when  the  judge  knows  but  part  of  it ;  for  the  better  and 
greater  part  of  the  evidence  may  be  wholly  unknown  to  him; 
and  this  may  happen  in  most  cases,  and  often  doth,  as  in  Graves 
and  Short's  Case,  40  El.  Cro.  f.  616. 

That  decantatum  in  our  books,  ad  quaestionem  facti  non  re- 
spondent judices,  ad  quaestionem  legis  non  respondent  juratores, 
literally  taken,  is  true :  for  if  it  be  demanded.  What  is  the  fact  ? 
the  judge  cannot  answer  it ;  if  it  be  asked.  What  is  the  law  in  the 
case?  the  jury  cannot  answer  it. 

Therefore  the  parties  agree  the  fact  by  their  pleading  upon 
demurrer,  and  ask  the  judgment  of  the  court  for  the  law. 

In  special  verdicts  the  jury  inform  the  naked  fact,  and  the 
court  deliver  the  law ;  and  so  is  it  in  demurrers  upon  evidence,  in 
arrest  of  judgments  upon  challenges ;  and  often  upon  the  judge 's 


II 


Sec.  4.]  chichesteb  v.  philips.  317 

opinion  of  the  evidence  given  in  court  the  plaintiff  becomes  non- 
suit, when  if  the  matter  had  been  left  to  the  jury  they  might 
well  have  found  for  the  plaintiff. 

The  prisoners  were  discharged. 


CHICHESTER  v.  PHILIPS. 

T.  Raijmond,  404.     [B.  R.  1680.] 

The  plaintiff  Philips  in  the  action,  brought  the  action  first  in 
C.  B.  in  Ireland,  and  declared  of  the  demise  of  Roger  Masterson, 
Esq.,  for  eleven  years.  Upon  not  guilty  pleaded,  and  a  trial  at 
the  bar  in  C.  B.  there  was  a  bill  of  exceptions  put  in  by  the 
defendant,  which  was  as  follows:     *     *     * 

That  the  defendant  gave  in  evidence  to  prove  that  she  was 
not  guilty,  that  the  said  Roger  Masterson  long  before  the  said 
demise  to  the  plaintiff,  viz.,  4  January,  1672,  by  indenture  for 
money  bargained  and  sold  the  premises  to  one  Edward  Chichester 
for  500  years,  that  the  said  Edward  Chichester  afterwards,  viz., 
14  February,  1673,  did  make  his  last  will  in  writing,  and  thereof 
made  his  brother,  John  Chichester,  his  executor  and  William 
Hancock  overseer.     And  to  prove  that  he  made  the  said  will, 
she  produced  an  instrument  under  the  seal  of  the  prerogative 
court  of  Canterbury,  reciting  the  said  will,  and  that  the  said 
John  Chichester  was  beyond  the  seas,  and  a  grant  of  the  admin- 
istration to  the  said  William  Hancock  for  so  long  time  as  the 
said  executor  shall  be  beyond  sea,  dat.  3  September,  1674.    *    *    * 
Whereupon  the  said  Elizabeth,  without  any  further  proof  of  the 
said  will,  desired  the  said  justices  that  they  would  direct  the 
jury  that  the  said  writings  produced  by  her  were  conclusive 
evidence  to  prove  that  the  said  Edward  Chichester  made  the  said 
will,  and  so  she  was  not  guilty  of  the  said  trespass  and  ejectment. 
Nevertheless  the  said  justices  did  only  direct  the  jury  that  the 
said  writings  were  evidence,  upon  which  they  might  find  that 
the  said  Edward  made  the  said  will,  but  not  that  the  same  was 
conclusive  evidence  in  that  behalf,  and  so  left  it  indifferently  to 
the  jury,  Avhether  the  said  Edward  made  the  said  Mali  or  no, 
though  the  plaintiff  offered  nothing  against  the  said  will,  but 
the  said  letters  of  administration  granted  by  the  said  archbishop 


318  CONDUCT    OP   THE   TRIAL.  [ChAP.  IV. 

of  Armagh ;  whereupon  the  jury  found  that  the  said  Edward 
made  no  such  will ;  thereupon  judgment  was  given  in  B.  B.  for 
the  plaintiff,  and  the  defendant  brought  a  writ  of  error  in  B.  R. 
in  Ireland,  and  there  the  judgment  was  affirmed ;  and  now  she 
hath  brought  a  writ  of  error  here,  and  assigns  for  error,  the  not 
allowing  of  the  evidence  to  be  conclusive,  as  in  the  bill  of 
exceptions  is  alleged.  And  here  also  judgment  was  affirmed  by 
the  whole  court,  because  though  the  evidence  be  conclusive,  yet 
the  jury  may  hazard  an  attaint  if  they  please ;  ^  and  the  proper 
way  for  the  defendant  had  been  to  have  demurred  upon  the 
plaintiff's  evidence.  This  question,  whether  the  probate  is  con- 
clusive, hath  been  variously  allowed ;  but  of  later  days  it  hath 
been  adjudged,  that  nothing  can  be  given  in  evidence  against 
it,  but  forgery  of  it,  or  its  being  obtained  by  surprise. 


COLLEGE  OF  PHYSICIANS  v.  LEVETT. 

1  Lord  Raymond;  472.      [1701.] 

The  plaintiffs  brought  debt  against  the  defendant  for  £25 
for  having  practised  physiek  within  London  five  months,  without 
license.  Upon  nil  debet  pleaded,  it  was  tried  before  Holt,  chief 
justice  of  the  king's  bench  in  London  at  Guildhall,  on  Tuesday, 
the  18th  of  November,  1701,  in  Michaelmas  term,  10  Will.  3. 
And  the  defendant's  defense  was,  that  he  was  a  graduate  doctor 
of  Oxford.  But  it  was  ruled  by  Holt,  upon  consideration  of  all 
the  statutes  concerning  this  matter,  that  he  could  not  practise 
within  London,  or  seven  miles  round,  without  license  of  the 
college  of  physicians.  And  by  his  direction  a  verdict  was  given 
for  the  plaintiffs.^ 

1  The  question  as  to  the  power  of  mond,  89,  but  it  is  probably  inaccu- 
the  Court  to  set  aside  a  verdict  and  rate.  In  Wright  v.  Crump,  7  Mod- 
grant  a  new  trial  had  been  raised  crn,  1  (1702)  the  same  judge  is  re- 
somewhat  earlier  in  Slade's  Case,  ported  as  saying:  "If  a  jury  give 
Style  138   (1648).  a  verdict   on   their   own   knowledge, 

1  And  so  in  Thomas  v.  Bishop,  2  they  ought  to  tell  the  Court  so;  but 

Strange,  955   (1733).  the  fairer  way  had  been  for  such  of 

The  report  seems  to  indicate  that  the   jury  as   had   knowledge   of   the 

Lord    Holt    directed    a    verdict    for  matter,    before   they    are   sworn,   to 

plaintiff,  on  oral  testimony  in  1696,  tell  the  thing  to  the  Court,  and  be 

in  Wilkinson  v.  Kitchin,  1  Ld.  Ray-  sworn  as  witnesses." 


Sec.  4.]  syderbottom  v.  smith.  319 

SYDERBOTTOM  v.  SMITH. 

1  Strange,  649.      [1725.] 

In  an  action  against  the  endorser  of  a  promissory  note,  the 
chief  justice  directed  the  jury  to  find  for  the  defendant,  because 
the  plaintiff  had  not  proved  ^  diligence  to  get  the  money  of  the 
drawer,  being  of  the  old  opinion  that  the  endorser  only  warrants 
upon  the  default  of  the  drawer.  Vide  Collins  v.  Butler,  post. 
1087. 


COMPANY  OF  CARPENTERS  v.  HAYWARD. 

1  Douglas,  374.     [B.  R.  1780.] 

This  was  an  action  on  the  case,  against  a  carpenter,  for  the 
breach  of  a  custom,  which  was  laid  to  be,  that  none  but  members 
of  the  company  (being  a  corporation  by  prescription),  or  their 
apprentices,  or  journeymen,  should  exercise,  in  Shrewsbury,  or 
within  a  certain  district  round  that  town,  any  of  the  trades 
mentioned  in  the  title  of  the  company.  The  cause  was  tried 
the  last  assizes  for  Shropshire,  before  Heath,  Sergeant,  and  a 
verdict  found  for  the  plaintiffs.  On  Thursday,  the  13th  of  April, 
Howorth  obtained  a  rule  to  show  cause  why  a  nonsuit  should  not 
be  entered,  or  a  new  trial  granted ;  ^  and  the  case  came  on  to  be 

1  Eich  V.  Johnson,  2  Strange,  1142  i  The  practice  of  taking  up  such 

(B.  R.   1740):      "In  ejectment  for  questions  by  bill  of  exceptions  ap- 

mines   the   plaintiff   proved   himself  pears  somewhat  later,  though  it  was 

lord  of  the  manor,  and  that  he  was  tried  in  Chichester  v.  Philips  (1680), 

in  possession  thereof.    But  the  same  ante,  p.  317.     Best,  J.,  (in  Bulkeley 

witness  proving,  that  the  defendants  v.  Butler,  2  B.  &  C,  434   [1824]): 

had    had    possession    of    the    mines  ' '  The  question  appears  so  clear,  that 

above  twenty  years;  the  Court  upon  I  certainly  should  abstain  from  say- 

a  trial  at  bar  held  this  no  evidence  ing   anything   upon   it,   were   it   not 

to  avoid  the  statute  of  limitations,  for   the   importance   of   all   matters 

there  being  no  entry  within  twenty  touching   the   law   of   evidence.     At 

years  upon  the  mines,  which  are  a  first  I  entertained  a  doubt,  whether 

distinct  possession,  and  may  be  dif-  the  objection  raised  could  be  taken 

ferent    inheritances:    and    therefore  advantage  of  by  bill  of  exceptions, 

directed  the  jury  to  find  for  the  de-  The  respective  offices  of  bills  of  ex- 

f endants. ' '  captions  and  demurrers  to  evidence 


320 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


argued,  this  day,  by  Bearcroft,  for  the  plaintiffs,  and  Howorth, 
for  the  defendant.     *     *     * 

Lord  Mansfield.  1.  It  was  properly  left  to  the  jury  to  con- 
sider whether  the  evidence  produced  was  sufficient  to  show  that 
there  was  such  a  company ;  for  that  was  a  mere  question  of  fact ; 
and  they  were  to  decide  on  its  existence,  and  whether  it  was 
originally  created  by  a  charter  from  the  crown  or  was  only  a 
voluntary  society.  There  was  evidence  of  its  existence  as  a 
corporation.  2.  The  witnesses  rejected  were  clearly  interested  in 
the  question.  If  the  company  had  failed  in  establishing  the 
custom,  they  would  have  been  discharged  from  actions  to  which 
they  are  liable  for  the  breach  of  it. 

WiLLES  and  Ashhurst,  Justices,  of  the  same  opinion. 

BuLLER,  Justice.  1.  Whether  there  be  any  evidence  is  a  ques- 
tion for  the  judge.  Whether  sufficient  evidence  is  for  the  jury. 
2.  THe  objection  to  the  witness  produced  for  the  defendant  was 
certainly  decisive ;  nor  is  it  true  that  he  could  have  had  no  other 
sort  of  witnesses.     The  employers  might  have  been  witnesses. 

The  rule  discharged. 


have  not  been  very  distinctly  under- 
stood, as  appears  by  the  judgment 
of  Eyre,  C.  J.,  in  Gibson  v.  Hunter, 
2  H.  Bl.  187.  It  appears  to  me  now, 
that  this  objection  is  open  on  a  bill 
of  exceptions,  but  that  the  party 
making  it  should  not  be  placed  in  a 
better  situation  than  if  he  had  de- 
murred to  the  evidence.  Bills  of 
exceptions  were  not  known  to  the 
common  law,  but  were  introduced  by 
the  13  Edw.  1  c.  31.  Until  that 
time,  if  the  judge  decided  wrongly 
upon  any  point  of  law,  the  suitor 
was  without  remedy.  The  statute 
was  made  to  relieve  parties  from 
that  hardship,  it  should  therefore 
receive  a  liberal  exposition;  for 
which  reason,  although  it  appears  to 
have  been  applicable  originally  to 
decisions  upon  pleadings  only  (which 
at  that  time  were  carried  on  ore 
tenus),  yet  I  think  it  may  fairly  be 
extended  to  such  a  case  as  the  pres- 
ent.    In  the   2   Inst.    p.   427,   Lord 


Coke  says  it  extends  to  cases  where 
any  material  evidence  given  to  any 
jury  is  by  the  Court  overruled.  I 
think  we  ought  to  go  further,  and 
say,  that  where  there  is  not  evidence 
to  prove  the  issue  to  be  tried,  and 
the  judge  tells  the  jury  there  is,  that 
is  ground  for  tendering  a  bill  of  ex- 
ceptions. But  it  may  be  asked  what 
then  is  the  office  of  a  demurrer  to 
evidence?  It  is  this.  If  the  party 
tenders  a  bill  of  exceptions,  the 
evidence  must  be  left  to  the  jury; 
but  if  the  party  does  not  wish  that, 
he  may  withdraw  it  from  their  con- 
sideration by  a  demurrer.  If,  how- 
ever, he  does  not  demur,  he  must  not 
be  placed  in  a  better  situation  than 
if  he  did.  Now,  by  a  demurrer  to 
evidence,  aU  the  facts  of  which  there 
is  any  evidence  are  admitted,  and  all 
conclusions  which  can  fairly  and 
logically  be  deduced  from  those 
facts. ' ' 


Sec.  4.]  toomey  v.  london,  etc.,  ry.  co.  321 

TOOMEY  V.  LONDON,  ETC.,  RY.  CO. 

3  Common  Bench  (N.  S.),  146.     [1857.] 

This  was  an  action  in  which  the  plaintiff  sought  to  recover 
damages  against  the  London,  Brighton  and  South  Coast  Railway 
Company  for  an  injury  sustained  by  the  plaintiff  from  alleged 
negligence  on  the  part  of  their  servants. 

The  declaration  stated,  that,  before  and  at  the  time  of  com- 
mitting of  the  grievances  thereinafter  mentioned,  the  defendants 
were  possessed  of  a  public  railway  station,  to-wit,  at  Forest 
Hill,  for  the  reception  of  passengers  in  and  by  the  defendants' 
railway,  for  the  profit  and  advantage  of  the  defendants,  and  by 
reason  of  the  possession  and  use  of  the  said  railway  station  by 
the  defendants  for  the  purpose  aforesaid,  they  ought  to  have 
kept  the  same  in  a  reasonably  safe  and  secure  condition,  and  so 
as  not  fo  be  dangerous  to  persons  lawfully  and  properly  using 
the  same;  nevertheless,  the  defendants  failed  in  such  duty,  and 
by  means  of  the  mere  neglect  and  default  of  the  defendants  in 
that  behalf,  the  plaintiff,  who  was  lawfully  in  and  using  the 
said  station  as  a  passenger  of  the  defendants,  and  with  their 
permission,  and  for  their  profit  and  advantage,  fell  through  a 
door,  which  the  defendants  then  carelessly,  negligently,  and 
improperly  left  open  and  unguarded,  in  the  said  station,  and 
which  was  by  the  neglect  and  default  of  the  defendants  in  that 
behalf  dangerous  to  persons  lawfully  and  properly  using  the 
same,  into  a  deep  cellar  or  hole,  and  thereby  sustained  divers 
bodily  injuries,  and  became  permanently  wounded  in  health  and 
disabled  from  following  his  trade  of  hawker,  or  otherwise  earn- 
ing his  living,  and  was  put  to  expense,  and  spoiled  his  clothes 
which  he  had  on,  and  lost  divers  of  his  goods  and  money,  which 
he  had  with  him  when  he  fell,  and  was  and  is  otherwise  injured. 
And  the  plaintiff  claimed  £500. 

The  defendants  pleaded  not  guilty. 

The  cause  was  tried  before  Cresswell,  J.,  at  the  first  sitting 
at  Westminster  in  this  term.  The  facts  were  as  follows:  The 
plaintiff,  a  poor  and  illiterate  person  who  carried  on  the  employ- 
ment of  a  hawker,  went  to  the  Forest  Hill  station  of  the  London, 
Brighton  and  South  Coast  Railway,  for  the  purpose  of  proceed- 
ing to  London  by  the  10  :30  P.  M.  train.  Whilst  waiting  there, 
he  inquired  of  a  person  on  the  platform,  unconnected  with  the 

H.  T.  p.— 21 


322  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

railway,  where  he  should  find  a  urinary;  this  person  told  him 
to  go  to  the  right ;  he  did  so,  and  found  two  doors,  upon  one  of 
which  was  painted  the  words  "For  gentlemen,"  and  upon  the 
other  the  word  ' '  Lamproom ; ' '  there  being  a  light  over  the  former, 
but  none  over  the  latter.  The  plaintiff,  being  in  a  hurry,  and 
unable  to  read,  opened  the  wrong  door,  stepped  forward,  and 
fell  down  some  steps,  breaking  two  of  his  ribs,  and  otherwise 
seriously  hurting  himself.  There  was  no  evidence  as  to  the 
description  of  the  steps  down  which  the  plaintiff  fell,  nor  as 
to  the  state  in  which  the  door  of  the  lamproom  was  ordinarily 
kept;  but  the  plaintiff's  son  stated,  that,  when  he  went  some 
time  after  the  accident  to  look  at  the  place  he  found  the  door 
locked. 

On  the  part  of  the  defendants,  it  was  submitted  that  there  was 
no  evidence  to  go  to  the  jury  of  negligence,  and  that  the  accident 
was  attributable  entirely  to  the  plaintiff's  own  want  of  caution 
in  going  hastily  and  in  the  dark  through  a  strange  door. 

The  learned  judge  was  of  this  opinion,  and  the  plaintiff  was 
nonsuited,  with  leave  to  move  to  enter  a  verdict  for  £35  (agreed 
damages),  if  the  court  should  be  of  opinion  that  there  was  evi- 
dence which  ought  to  have  been  submitted  to  the  jury. 

Williams,  J.  I  am  of  opinion  that  there  should  be  no  rule 
in  this  case.  I  think  there  was  no  evidence  of  negligence  on  the 
part  of  the  company  or  their  servants  which  ought  to  have  been 
submitted  to  the  jury.  It  is  not  enough  to  say  that  there  was 
some  evidence ;  for,  every  person  who  has  had  any  experience  in 
courts  of  justice  knows  very  well  that  a  case  of  this  sort  against 
a  railway  company  could  only  be  submitted  to  a  jury  with  one 
result.  A  scintilla  of  evidence,  or  a  mere  surmise  that  there 
may  have  been  negligence  on  the  part  of  the  defendants,  clearly 
would  not  justify  the  judge  in  leaving  the  case  to  the  jury; 
there  must  be  evidence  upon  which  they  might  reasonably  and 
properly  conclude  that  there  was  negligence.^     All  that  appeared, 

1  In  Bridges  v.  North  London  Ey.  is   bound   to   maintain?    It  may  be 

Co.,  7  L.  E.  Eng.  &  Irish  Appeals,  said  that  this  is  so  indefinite  as  to 

213,    Mr.    Justice   Brett   stated    the  amount  to  no  rule,  that  it  leaves  the 

test   as  follows:     "The   proposition  judge  after  all  to  say  whether  in  his 

seems   to  me  to  be  this:    are  there  individual  opinion  the  facts  in  evi- 

facts    in    evidence    which    if    unan-  dence  would  prove  the  proposition; 

swered  would  justify  men   of   ordi-  but  I  cannot  think  so.     It  is  surely 

nary  reason  and  fairness  in  affirm-  possible    to    admit    that    reasonable 

ing  the  question  which  the  plaintiff  and  fair  men  might  come  to  a  con- 


Sec.  4.]  toomey  v.  London,  etc.,  ry.  go.  323 

was,  that  the  plaintiff  inquired  of  a  stranger  the  way  to  the 
urinal,  and,  being  told  to  go  in  a  particular  direction  where 
there  were  two  doors,  unfortunately  opened  the  wrong  one,  and 
through  his  own  carelessness  fell  down  some  steps.  If  there 
had  been  any  evidence  to  show  that  these  steps  were  more  than 
ordinarily  dangerous,  that  possibly  might  have  led  to  a  different 
conclusion.  But  all  that  appears  is,  that  the  door  in  question 
led  down  some  steps  into  a  room  which  was  used  for  the  purposes 
of  the  company,  and  not  for  the  convenience  of  the  public.  I 
cannot  say  that  there  was  such  evidence  of  negligence  in  the 
defendants  as  the  learned  judge  was  bound  to  leave  to  the  jury. 

WiLLES,  J.  I  am  entirely  of  the  same  opinion.  In  order  to 
establish  a  case  of  negligence  against  the  defendants,  it  was 
incumbent  on  the  plaintiff  to  prove  some  fact  which  was  more 
consistent  with  negligence  than  with  the  absence  of  it.  There 
was  nothing  of  the  sort  proved  here.  There  was  nothing  to  show 
that  the  door  and  the  steps  beyond  were  more  than  ordinarily 
dangerous;  and  it  was  necessary  and  proper  that  something  of 
the  sort  should  be  there  for  the  convenient  use  of  the  station  by 
the  company.  It  would  be  difficult  so  to  arrange  every  part  of 
a  station  as  to  render  it  impossible  for  careless  persons  to  meet 

elusion  which  one's  self  would  not  there  facts  in  evidence  upon  which, 
arrive  at.  And  judges  may  be  able  if  unanswered,  men  of  ordinary  rea- 
reasonably  to  say  frequently,  that  son  and  fairness  might  fairly  say 
although  they  would  not  upon  the  that  any  such  act  of  commission  or 
facts  have  come  to  the  same  conclu-  omission  was  such  as  a  person  of 
sion  to  which  the  jury  has  come,  reasonable  care  and  skill  under  the 
yet  they  or  he  cannot  say  but  that  same  circumstances  would  have  done 
reasonable  and  fair  men  might  agree  or  omitted  to  do?  Are  there  facts 
with  the  conclusion  of  the  jury;  or,  in  evidence  upon  which,  if  unan- 
in  other  words,  that,  although  they  swered,  men  of  ordinary  reason  and 
would  not  have  arrived  at  the  same  fairness  might  fairly  say  that  the 
conclusion,  it  is  not  contrary  to  rea-  plaintiff  had  not,  in  a  manner  con- 
son  to  have  arrived  at  it.  tributing  to  the  accident,  done  any- 
"The  judge  must,  therefore,  be-  thing  or  omitted  to  do  anything 
fore  directing  the  jury  in  the  terms  which  a  person  of  ordinary  care  and 
above  set  forth,  first  determine  the  skill  under  the  same  circumstances 
following  questions :  Are  there  facts  would  not  have  done  or  would  have 
in    evidence   upon    which,    if    unan-  done?" 

swered,  men  of  ordinary  reason  and  See    comments    on    this    case    by 

fairness  might  fairly   say   that   the  I>ord  Cairns  in  Metropolitan  Ey.  v. 

plaintiff  had  been  injured  by  some  Jackson,  L.  R.  3  Appeal  Cases   (H. 

act   of   commission    or    omission    by  of  L.)   193, 
the  defendants  or  their  servants?  Are 


324  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

with  injury.  I  think  the  plaintiff  failed  to  make  out  that  he 
sustained  the  injury  complained  of  througli  any  negligence  of 
the  company  or  their  servants. 

Rule  refused. 


RICHARDSON  v.  CITY  OF  BOSTON. 
19  Howard,  263.     [1856.] 

Grier,  j_     *     *     * 

2.  At  the  conclusion  of  the  trial,  the  court,  at  the  request  of 
defendant's  counsel,  instructed  the  jury  "that  there  was  not 
.sufficient  evidence  in  the  cause  to  authorize  the  jury  to  find 
the  rights  claimed  by  the  plaintiff." 

As  it  is  the  duty  of  the  jury  to  decide  the  facts,  the  sufficiency 
of  evidence  to  prove  those  facts  must  necessarily  be  within  their 
province.  The  jury  cannot  assume  the  truth  of  any  material 
averment  without  some  evidence ;  and  it  is  error  in  the  court  to 
instruct  the  jury  that  they  may  find  a  material  fact  of  which 
there  is  no  evidence.  An  instruction  like  this  is  imperative  on  a 
jury;  it  has  taken  the  place,  in  practice,  of  a  demurrer  to 
evidence,  and  must  be  governed  by  the  same  rules.  If  there  be 
"no  evidence  whatever,"  ^  as  in  the  case  of  Parks  v.  Ross  (11 

1  See  also,  O  'Kelly  v.  O  'Kelly,  8  withhold    the   facts   from    the   jury, 

Met.    436.      Similar    statements    are  when  they  are  not  such  as  can  afford 

to  be  found  in  most  of  the  states  at  any   ground   for   finding   an   accept- 

this  time.    But  in  1862,  the  rule  was  anee;  and  this  includes  cases  where, 

stated  as  follows  in  Denny  v.  Wil-  though  the  Court  might  admit  that 

liams,    5    Allen     (Mass.)     1:      "In  there    was    a    scintilla    of    evidence 

such  cases,  a  refusal  of  the  judge  to  tending  to  show  an  acceptance,  they 

instruct  the  jury  that  the  evidence  would  still  feel  bound  to  set  aside  a 

is  insufficient  is  a  good   ground  of  verdict  finding  an  acceptance  upon 

exception.     It  is  not  necessary  that  that  evidence. '     What  this  scintilla 

there   should   be   absolutely   no   evi-  is,  needs  to  be  stated  a  little  more 

denee.       The     rule,     as     stated     in  definitely;    otherwise  it  may  be  un- 

Browne    on    the    St.    of    Frauds,    c.  derstood  to  include  all  cases  where, 

15,    sec.    321,    is    sustained    by    the  on  a  motion  for  a  new  trial,  a  ver- 

authorities    cited :     *  Whether    there  diet  would  be  set  aside,  as  against 

has  been  a  delivery  and  acceptance  the  weight  of  the  evidence.    It  would 

sufficient  to   satisfy   the   statute   of  be  impossible  to  draw  a  line  theo- 

fiauds  is  a  mixed  question  of  law  retically,    because    evidence    in    its 

and  fact.    But  it  is  for  the  Court  to  very  nature  varies  from  the  weakest 


Sec.  4.]  pleasants  v.  fant.  325 

How.  393),  to  prove  the  averments  of  the  declaration,  it  is  the 
duty  of  the  court  to  give  such  peremptory  instruction.  But  if 
there  be  some  evidence  tending  to  support  the  averment,  its 
value  must  be  submitted  to  the  jury  with  proper  instructions 
from  the  court.  If  this  were  not  so,  the  court  might  usurp  the 
decision  of  facts  altogether,  and  make  the  verdict  but  an  echo 
of  their  opinions.     *     *     * 

There  was  some  evidence  that  the  drain  constructed  by  defend- 
ant was  not  carried  out  sufficiently  to  discharge  its  contents  so 
as  to  be  swept  off  by  the  tides ;  but  that  it  caused  an  accumulation 
of  matter  at  the  outer  end  of  the  plaintiff's  wharves,  insomuch 
that  vessels  could  not  approach  them  with  the  same  depth  of 
water  as  formerly.  If  this  be  so,  it  was  an  injury  to  the  plain- 
tiff, for  which  he  was  entitled  to  recover  damages. 

This  question  should  have  been  submitted  to  the  jury,  and 
this  instruction  given,  as  requested  by  plaintiff's  counsel.  The 
others  are  disposed  of  by  the  opinion  of  this  court  in  Boston  v. 
Lecraw. 

For  these  reasons  the  judgment  is  reversed,  and  venire  de  novo 
awarded. 


PLEASANTS  v.  FANT. 

22  Wallace,  116.      [V.  8.  Sup.  1874.] 

Error  to  the  Circuit  Court  for  the  District  of  Maryland. 

R.  &  H.  Pleasants  sued  Fant  in  the  court  below,  and  the  single 
question  in  dispute  was  whether  the  defendant  was  a  partner  in 
the  firm  of  Keene  &  Co.,  so  as  to  charge  him  with  a  debt  conceded 

to   the   strongest,   by   imperceptible  diet  would  be  suffered  to  stand,  the 

degrees.     But  the  practical  line  of  cause  should  not  be  taken  from  the 

distinction   is,   that   if  the   evidence  jury,    but    should    be    submitted    to 

is   such    that   the    Court    would    set  them  under  instructions.     This  rule 

aside   any   number   of   verdicts   ren-  throws  uj^on  the  Court  a  duty  which 

dered   upon   it,   toties   quoties,   then  may  sometimes  be  very  delicate;  but 

the  cause  should  be  taken  from  the  it  seems  to  be  the  only  practicable 

jury,  by  instructing  them  to  fiud  a  rule   which   the   nature   of   the   case 

verdict  for  the  defendant.     On  the  admits. ' ' 

other  hand,  if  the  evidence  is  such  As  to   the   difference  between  di- 

that,  though  one  or  two  verdicts  ren-  lecting   a   verdict    and    setting    one 

dered   upon   it   would   be   set   aside  aside,  see  McDonald  v.  Ey.,  167  N. 

on  motion,  yet  a  second  or  third  ver-  Y.  66. 


326  CONDUCT    OP   THE   TRIAL.  [ChAP.  IV. 

to  be  due  by  that  firm  to  the  plaintiffs,  arising  out  of  some 
transactions  in  cotton.  The  case  was  tried  before  a  jury,  and 
when  the  testimony  was  through,  both  plaintiffs  and  defendant 
prayed  instructions  of  the  court,  which  were  all  refused,  and 
the  court  said  to  the  jury: 

"There  is  no  evidence  in  this  cause  from  which  the  jury  can 
find  that  the  defendant  had  such  an  interest  in  the  purchase  and 
sale  of  the  cotton  by  Keene  &  Co.  as  will  make  him,  the  defend- 
ant, a  partner  as  to  third  persons,  and  the  jury  will,  therefore, 
find  their  verdict  for  defendant." 

The  bills  of  exception  disclosed  the  testimony  on  which  this 
instruction  was  founded,  and  the  question  now  before  this  court 
was  whether  the  verdict  founded  on  that  instruction  should  be 
set  aside  and  the  judgment  reversed. 

The  direct  testimony  offered  to  prove  the  partnership  was 
confined  to  the  statements  of  Fant  in  a  conversation  with  one 
of  the  plaintiffs  and  a  clerk  in  their  office,  and  the  deposition  of 
Keene,  a  partner  of  Keene  &  Co.  The  substance  of  the  former 
was  that  Fant  denied  that  he  was  a  partner,  said  he  knew  from 
some  experience  what  was  necessary  to  make  him  a  partner,  and 
admitted  that  he  had  procured  for  Keene  a  loan  of  $10,000  in 
gold  from  a  bank  of  which  he  was  president,  and  that  he  was 
to  receive  part  of  the  profits  of  Keene 's  venture  in  purchasing 
cotton  with  that  money,  as  compensation  for  procuring  the  loan. 
What  portion  of  the  profits  he  was  to  receive  was  not  stated. 

Keene  in  his  deposition  denied. that  Fant  was  a  partner  in  the 
transaction,  but  said  that  Fant  had  negotiated  for  him  the  loan 
from  the  bank,  and  he  had  made  Fant  a  promise,  which  was 
entirely  voluntary,  to  give  him  a  part  of  the  profits  he  might 
realize,  and  that  he  had  mentioned  no  particular  part  or  pro- 
portion of  the  profits  to  be  so  given. 

After  the  admission  of  this  testimony,  the  plaintiffs,  on  the 
ground  that  they  had  sufficiently  shown  a  relation  between  Fant 
and  Keene  to  admit  of  Keene 's  declaration  to  third  persons  as 
to  Fant's  interest,  offered  to  prove  by  one  of  the  plaintiffs  that 
Keene  had  told  him  Fant  was  a  partner,  and  asked  that  the 
plaintiffs  would  advance  money  enough  on  the  cotton  then  in 
their  possession  as  brokers  to  enable  him  to  pay  Fant  his  money 
and  let  him  out  of  the  firm.  This  offer  was  objected  to  and  the 
objection  sustained  by  the  court. 

A  large  amount  of   testimony,  however,   was   admitted,  the 


Sec.  4.]  pleasants  v.  pant.  327 

object  of  which  was  to  show  that  Fant,  as  president  of  the  bank, 
was  in  the  habit  of  using  the  money  of  the  bank  in  private  specu- 
lations, without  the  knowledge  of  the  directors,  but  which  was 
very  feeble  and  far  from  establishing  that  fact. 

Verdict  and  judgment  having  been  given  for  the  defendant,  the 
plaintiffs  brought  the  case  here. 

Mr.  Justice  ]\Iiller  delivered  the  opinion  of  the  court. 

If  the  admission  of  Fant  to  plaintiffs,  and  the  evidence  of 
Keene,  are  insufficient  to  raise  a  prima  facie  presumption  of 
partnership,  then  Keene 's  declarations  on  that  subject  were 
inadmissible,  and  the  court  was  right  in  its  instruction  to  the 
jury.  If  it  was  sufficient  for  that  purpose  then  it  was  erroneous, 
and  the  evidence  here  offered  of  Keene 's  statements  to  plaintiffs 
was  improperly  excluded. 

The  case  rests  after  all  on  the  question  whether  in  Fant's 
declaration  to  the  plaintiffs  and  Keene 's  deposition  there  was 
evidence  of  a  partnership  on  which  a  verdict  for  plaintiff  could 
have  been  sustained. 

We  have  been  favored  by  counsel  with  a  reference,  very  learned 
and  very  exhaustive,  to  the  authorities  on  the  question  of  how 
far  or  when  a  participation  in  the  profits  subjects  a  party  to  the 
liability  of  a  partner  to  third  persons.  And  it  must  be  con- 
fessed that  some  of  the  discriminations,  where  profits  are  used 
as  compensation  for  definite  services,  are  very  nice. 

We  do  not  think  that  a  close  examination  into  these  is  neces- 
sary in  this  case.  According  to  Keene 's  testimony  there  was 
clearly  no  contract  binding  him  to  divide  the  profits  with  Fant. 
He  says  the  promise  was  entirely  voluntary,  and  that  no  portion 
of  the  profits  was  mentioned.  By  voluntary  he  undoubtedly 
means  that  it  was  not  a  part  of  the  agreement  by  which  he 
obtained  the  money,  but  a  gratuitous  promise  to  reward  his 
friendship  if  he  succeeded  in  his  venture. 

Fant's  statement  to  the  plaintiff,  as  detailed  by  the  latter, 
differs  but  very  little  from  this.  As  a  compensation  for  obtain- 
ing the  loan,  he  says  that  Keene  agreed  to  allow  him  a  part  of  the 
profits,  but  how  much  or  what  proportion,  or  whether  it  was  a 
definite  sum  to  be  paid  out  of  the  profits,  or  a  proportionate 
part  of  the  profits,  is  not  shown. 

If  one  of  the  most  approved  criteria  of  the  existence  of  the 
partnership  in  such  cases  be  applied  to  this,  namely,  the  right 
to  compel  an  account  of  profits  in  equity,  the  evidence  totally 


328 


CONDUCT   OF   THE   TRIAL, 


[Chap.  IV. 


fails.  Ill  a  suit  for  that  purpose,  founded  on  this  precise  state- 
ment, no  chancellor  would  hesitate  to  dismiss  the  bill. 

But  we  are  pressed  with  the  proposition  that  it  was  for  the 
jury  to  decide  this  question,  because  the  testimony  received  and 
offered  had  some  tendency  to  establish  a  participation  in  the 
profits,  and  the  question  of  liability  under  such  circumstances 
should  have  been  submitted  to  them,  with  such  declarations  of 
what  constitutes  a  partnership  as  would  enable  them  to  decide 
correctly. 

No  doubt  there  are  decisions  to  be  found  which  go  a  long 
way  to  hold  that  if  there  is  the  slightest  tendency  in  any  part 
of  the  evidence  to  support  plaintiff's  case  it  must  be  submitted 
to  the  jury,  and  in  the  present  case,  if  the  court  had  so  submitted 
it,  with  proper  instructions,  it  would  be  difficult  to  say  that  it 
would  have  been  an  error  of  which  the  defendant  could  have 
complained  here. 

But,  as  was  said  by  this  court  in  the  case  of  the  Improvement 
Company  v.  Munson,  14  Wallace,  448,  recent  decisions  of  high 
authority  have  established  a  more  reasonable  rule,  that  in  every 
case,  before  the  evidence  is  left  to  the  jury,  there  is  a  preliminary 
question  for  the  judge,  not  whether  there  is  literally  no  evidence, 
but  whether  there  is  any  upon  which  a  jury  can  properly  proceed 
to  find  a  verdict  for  the  party  producing  it,  upon  whom  the 
onus  of  proof  is  imposed. 

The  English  cases  there  cited  fully  sustain  the  proposition, 
and  the  decisions  of  this  court  have  generally  been  to  the  same 
effect. 

In  the  case  of  Parks  v.  Ross,  11  Howard,  362,  this  court  held 
that  the  practice  of  granting  an  instruction  like  the  present  had 
superseded  the  ancient  practice  of  demurrer  to  evidence,  and 
that  it  answered  the  same  purpose  and  should  be  tested  by  the 
same  rules;  and  in  that  case  it  said  the  question  for  the  con- 
sideration of  the  court  was  whether  the  evidence  submitted  was 
sufficient  to  authorize  the  jury  in  finding  the  contract  set  up 
by  plaintiff.  And  in  Schuchardt  v.  Aliens,  1  Wallace,  359,  this 
case  is  referred  to  as  establishing  the  doctrine  that  if  the  evidence 
be  not  sufficient  to  warrant  a  recovery,  it  is  the  duty  of  the 
court  to  instruct  the  jury  accordingly.' 

In  the  case  of  Pawling  v.  The  United  States,  4  Cranch,  219, 
the  court,  by  Marshall,  C.  J.,  said:  "The  general  doctrine  on 
a  demurrer  to  evidence  has  been  correctly  stated  at  the  bar.     The 


Sec.  4.]  pleasants  v.  pant.  329 

party  demurring  admits  the  truth  of  the  testimony  to  which  he 
demurs,  and  also  those  conclusions  of  fact  which  a  jury  may 
fairly  draw  from  that  testimony.  Forced  and  violent  inferences 
he  does  not  admit,  but  the  testimony  is  to  be  taken  most  strongly 
against  him,  and  such  conclusions  as  a  jury  might  justifiably 
draw  the  court  ought  to  draw. ' ' 

It  is  the  duty  of  a  court  in  its  relation  to  the  jury  to  protect 
parties  from  unjust  verdicts  arising  from  ignorance  of  the  rules 
of  law  and  of  evidence,  from  impulse  of  passion  or  prejudice,  or 
from  any  other  violation  of  his  lawful  rights  in  the  conduct  of 
a  trial.  This  is  done  by  making  plain  to  them  the  issues  they 
are  to  try,  by  admitting  only  such  evidence  as  is  proper  in  these 
issues,  and  rejecting  all  else ;  by  instructing  them  in  the  rules 
of  law  by  which  that  evidence  is  to  be  examined  and  applied, 
and  finally,  when  necessary,  by  setting  aside  a  verdict  which  is 
unsupported  by  evidence  or  contrary  to  law. 

In  the  discharge  of  this  duty  it  is  the  province  of  the  court, 
either  before  or  after  the  verdict,  to  decide  whether  the  plaintiff 
has  given  evidence  sufficient  to  support  or  justify  a  verdict  in 
his  favor.  Not  whether  on  all  the  evidence  the  preponderating 
weight  is  in  his  favor,  that  is  the  business  of  the  jury,  but 
conceding  to  all  the  evidence  offered  the  greatest  probative  force 
which  according  to  the  law  of  evidence  it  is  fairly  entitled  to, 
is  it  sufficient  to  justify  a  verdict?  If  it  does  not,  then  it  is 
the  duty  of  the  court  after  a  verdict  to  set  it  aside  and  grant  a 
new  trial.  Must  the  court  go  through  the  idle  ceremony  in 
such  a  case  of  submitting  to  the  jury  the  testimony  on  which 
plaintiff  relies,  when  it  is  clear  to  the  judicial  mind  that  if  the 
jury  should  find  a  verdict  in  favor  of  plaintiff  that  verdict  would 
be  set  aside  and  a  new  trial  had  ?  Such  a  proposition  is  absurd, 
and  accordingly  we  hold  the  true  principle  to  be,  that  if  the 
court  is  satisfied  that,  conceding  all  the  inferences  which  the 
jury  could  justifiably  draw  from  the  testimony,  the  evidence  is 
insufficient  to  warrant  a  verdict  for  the  plaintiff,  the  court  should 
say  so  to  the  jury.  In  such  case  the  party  can  submit  to  a  non- 
suit and  try  his  case  again  if  he  can  strengthen  it,  except  where 
the  local  law  forbids  a  nonsuit  at  that  stage  of  the  trial,  or  if 
he  has  done  his  best  he  must  abide  the  judgment  of  the  court, 
subject  to  a  right  of  review,  whether  he  has  made  such  a  case 
as  ought  to  be  submitted  to  the  jury ;  such  a  case  as  a  jury  might 
justifiably  find  for  him  a  verdict. 


330 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


Tested  by  these  principles  we  are  of  opinion  the  Circuit  Court 
ruled  well.  If  plaintiffs  had  secured  a  verdict  on  the  testimony 
before  us  we  think  that  court  ought  to  have  set  it  aside  as  not 
being  warranted  by  the  evidence.^  It  is  not  possible  with  any 
just  regard  to  the  principles  of  law  as  to  partnership,  and  the 
rules  of  evidence  as  applied  to  this  testimony,  to  come  fairly 
and  reasonably  to  the  conclusion  that  Fant  was  Keene's  partner 
in  this  transaction. 

Judgment  affirmed. 


PHILLIPS  V.  PHILLIPS. 


93  Iowa,  615.     [1895.] 


KiNNE,  J.       *       *       * 

III.  The  material  question  in  this  case  is  as  to  the  ruling  of  the 
court  instructing  the  jury  to  return  a  verdict  for  proponent. 
While  exception  is  taken  to  the  court's  ruling  in  withdrawing 
the  issue  of  undue  influence  from  the  jury,  we  do  not  under- 
stand that  appellants  now  seriously  ciuestion  the  correctness  of 


1  Scholfield,  J.,  in  Bartelott  v.  In- 
ternational Bank,  119  111.  259: 
*  *  *  "Third— We  said  in  Fra- 
zer  V.  Howe,  supra  (106  111.  573)  — 
and  that  ruling  has  been  since  ap- 
proved in  Simmons  v.  Chicago  and 
Tomah  Railroad  Co.,  110  111.  340, 
and  other  cases, — that  the  function 
of  the  judge  on  such  a  motion  '  is 
limited  strictly  to  determining 
whether  there  is  or  is  not  evidence 
legally  tending  to  prove  the  fact 
affirmed, — i.  e.,  evidence  from  which, 
if  credited,  it  may  reasonably  be 
inferred,  in  legal  contemplation,  the 
fact  affirmed  exists,  laying  entirely 
out  of  view  the  effect  of  aU  modify- 
ing or  countervailing  evidence.' 
*     *     # 

' '  Since  it  was  not  intended  in  this 
case  to  overrule  Simmons  v.  Chicago 
and  Tomah  Eailroad  Co.,  supra,  it 
is  apparent  that  'evidence  tending 


tc  prove,'  means  more  than  a  mere 
scintilla  of  evidence,  but  evidence 
upon  which  the  jury  could,  without 
acting  unreasonably  in  the  eye  of 
the  law,  decide  in  favor  of  the  plain- 
tiff, or  the  party  producing  it.  It  is 
not  intended  by  this  practice  that 
the  function  of  the  jury  to  pass 
upon  questions  of  fact  is  to  be  in- 
vaded, any  more  than  it  is  intended 
that  such  function  is  to  be  invaded 
by  a  motion  to  set  aside  a  verdict, 
and  for  a  new  trial,  upon  the 
ground  of  the  want  of  evidence  to 
sustain  the  verdict.  In  neither  case 
is  the  Court  authorized  to  weigh  the 
evidence  and  decide  where  the  pre- 
ponderance is.  HiUiard  on  New 
Trials,  p.  339,  sec.  9,  et.  seq. ;  John- 
son V.  Moulton,  1  Scam.  532 ;  Lowry 
V.  Orr,  1  Gilm.  70 ;  Morgan  v.  Ryer- 
son,  20  111.  343." 


i 


Sec.  4.]  phillips  v.  phillips.  331 

the  action  of  the  court  in  that  respect.     However  that  may  be, 
there  is  no  question  in  our  minds  that  the  court  was  justified  in 
holding  that  no  evidence  had  been  introduced  warranting  the 
submission  of  that  question  to  the  jury.     As  to  the  ruling  of  the 
court  directing  a  verdict  for  proponents,  upon  the  issue  of  want 
of  mental  capacity,  we  think  the  court  erred  in  its  judgment. 
At  the  conclusion  of  the  evidence  on  part  of  the  contestants  the 
court,  in  effect,  held  that  a  case  had  been  made  requiring  the 
submission  to  the  jury  of  the  question  as  to  whether  the  testator 
at  the  time  he  made  his  will  was  possessed  of  sufficient  mental 
capacity  to  execute  a  valid  will.     That  holding  was  undoubtedly 
correct.     The    testimony   of   Squire    Paxton,    who   had   known 
deceased  many  years,   and  who  drew  the  will,   if  it  is  to  be 
believed,  showed  that  the  testator  was  not  competent  to  make  a 
will ;  that  in  fact  he  was  almost,  if  not  entirely,  unconscious  when 
his  hand  was  guided  to  make  his  mark  to  the  will.     No  effort  was 
made  to  impeach  Paxton  generally.     It  is  true  an  attempt  was 
made,  which  was  only  partially  successful,  to  show  that  he  had 
testified  differently  on  a  former  trial.     The  case  then  was  in 
this  condition:     The  court  had  held  at  the  conclusion  of  con- 
testants' main  case,  and  before  proponent  entered  upon  his  case, 
that  contestants  had  made  a  case  to  be  submitted  to  a  jury. 
Proponent  then  introduced  evidence  tending  to  show  that  de- 
ceased was  capable  of  making  a  will.     Under  these  circumstances, 
the  court,  in  directing  a  verdict,  in  effect  put  himself  in  the  place 
of  the  jury,  and  weighed  the  evidence,  and  passed  upon  the 
credibility  of  the  several  witnesses.     If,  as  the  court  properly 
held,  the  contestants  when  they  closed  their  evidence  in  chief 
had  overcome  the  burden  which  the  law  cast  upon  them,  and  had 
in  addition  thereto  made  a  prima  facie  case  requiring  the  sub- 
mission of  the  issue  of  mental  capacity  to  the  jury,  it  does  not 
matter  what  evidence  was  thereafter  introduced — the  case  was 
for  the  jury.     In  other  words,  while  the  trial  court  may  deter- 
mine as  to  whether  the  contestants  had  given  evidence  sufficient 
to  support  a  verdict,  if  one  should  be  returned  in  their  favor, 
it  cannot,  under  the  rule  announced  in, Meyer  v.  Houck,  85  Iowa, 
319,  52  N.  W.  Rep.  235,  pass  upon  the  question  as  to  whether 
the  preponderating  weight  of  all  of  the  evidence  is  in  favor 
of  or  against  the  contestants ;  that  is  a  question  always  for  the 
jury.     So  it  is  for  the  jury  to  determine  as  to  the  weight  of  the 
evidence,  though  there  be  one  witness  testifying  on  one  side  to 


332  CONDUCT   OP   THE   TRIAL.  [ChaP.  IV. 

certain  facts,  and  niaHy  witnesses  on  the  other  side  testifying 
to  a  contrary  state  of  facts.  It  is  not  the  province,  in  such  a 
case,  of  the  court  to  pass  upon  the  credibility  of  the  several 
witnesses,  ai;id  say  which  one  told  the  truth,  or  that  the  story 
of  one  is  more  likely  to  be  correct  than  that  of  another.  The 
rule  laid  down  in  the  Meyer  Case  does  not  justify  any  such  con- 
tention, nor  can  it  be  extended  as  is  sought  to  be  done  by 
appellee  in  this  case.  To  do  so  would  be  equivalent  to  doing 
away  with  jury  trials.  In  this  case  it  is  apparent  that  the 
court's  mind  was  changed  as  a  result  of  the  consideration  of 
evidence  which  was  introduced  after  he  had  deliberately  deter- 
mined that  contestants  had  made  a  case  for  a  jury;  this  was 
evidence  introduced  by  the  proponent.  He  was  then  weighing 
the  evidence,  passing  upon  the  credibility  of  the  witnesses,  and, 
as  we  have  said,  this  he  cannot  do.  The  record  in  this  case  is 
such  that  a  trial  court  might  well  have  refused  to  disturb  a 
verdict  of  a  jury,  if  rendered  for  either  party.  Though  he 
might,  if  sitting  as  a  juror,  have  been  satisfied  that  the  evidence 
preponderated  in  favor  of  the  proponent,  still  that  would  not 
warrant  him  in  putting  himself  in  place  of  the  jury,  and  pass- 
ing upon  the  weight  of  the  evidence  and  the  credibility  of  the. 
witnesses — matters  as  to  which  the  jury  are  the  sole  judges.  For 
the  error  pointed  out  the  judgment  is  reversed.^ 


SOWELL  V.  CHAIVIPION. 
6  Adolphus  &  Ellis,  407.     [B.  R.  1837.] 

Lord  Denman,  C.  J.,  now  delivered  the  judgment  of  the  court. 

This  case  turns  upon  the  question,  whether  the  defendant 
Champion,  being  the  bailiff  for  executing  process  within  an 
inferior  jurisdiction,  was  directed  by  the  other  two  defendants, 
being  the  attorneys  who  sUed  out  the  process,  to  make  a  levy  in 
the  plaintiff's  house,  which  was  proved  to  be  out  of  the  juris- 
diction. The  rule  was  granted  on  a  doubt  whether  there  was 
any  evidence  of  such  specific  direction. 

iSee  also,  Baumann  v.  Hamburg-  250;  McDonald  v.  Street  Ey.  Co., 
American  Packet  Co.,  67  N.  J.   L.       167  N.  Y.  66. 


Sec.  4.]  sowell  v.  champion.  333 

All  the  defendants  pleaded  not  guilty ;  and,  secondly,  a  justifi- 
cation, under  the  judgment  and  ji.  fa.,  averring  the  plaintiff's 
house  to  be  within  the  jurisdiction.  The  plaintiff  contented 
himself  at  first  with  proving  the  goods  seized,  and  that  they 
were  taken  by  the  defendant  Champion,  under  a  precept  handed 
to  him  by  the  defendants  Tresidder  and  White.  At  the  close 
of  this  case  the  counsel  for  Tresidder  and  White  applied  to  the 
learned  judge  to  direct  their  acquittal,  which,  we  think,  he 
properly  refused.  The  ground  for  the  application  was  the 
alleged  absence  of  any  evidence  against  them  to  make  them  co- 
trespassers  ;  but  this  ground,  if  true  in  fact,  would  by  itself  have 
been  wholly  insufficient  to  warrant  it.  The  application  to  a 
judge,  in  the  course  of  a  cause,  to  direct  a  verdict  for  one  or 
more  of  several  defendants  in  trespass  is  strictly  to  his  discre- 
tion; and  that  discretion  is  to  be  regulated,  not  merely  by  the 
fact  that  at  the  close  of  the  plaintiff's  case  no  evidence  appears 
to  affect  them,  but  by  the  probabilities  whether  any  such  will 
arise  before  the  whole  evidence  in  the  cause  closes.  This  is  so 
palpable  a  failure  of  justice,  when  the  evidence  for  the  defense 
discloses  a  case  against  a  defendant  already  prematurely  ac- 
quitted, that  such  acquittal  ought  never  to  take  place,  but  where 
there  is  the  strongest  reason  to  believe  that  such  a  consequence 
cannot  follow.  In  the  present  case,  we  think  that  if,  in  truth, 
there  had  been  nothing  for  the  jury  to  consider,  as  against  these 
two  defendants,  the  judge  would  have  exercised  a  sound  discre- 
tion in  refusing  to  direct  their  acquittal  when  the  application 
was  made ;  but  we  are  of  opinion  that,  until  the  judgment  was 
put  in,  and  they  appeared  to  be  acting  as  attorneys  in  the  execu- 
tion of  a  judgment,  they  could  be  considered  only  as  directing 
a  seizure  of  the  plaintiff's  goods  without  any  authority;  and 
although  the  direction  was,  in  terms,  to  seize  within  one  jurisdic- 
tion, and  the  seizure  was,  in  fact,  made  in  another,  yet  it  was 
open  for  the  jury,  as  against  wrong  doers,  to  consider,  upon  the 
evidence,  whether  they  did  not  direct  the  seizure  to  be  made  in 
that  place  in  which  they  certainly  knew  that  it  would  take  place. 

The  defendants  then  attempted  to  establish  their  justification, 
but  failed ;  they  proved,  however,  a  judgment  against  the  plain- 
tiff, and  an  execution  regular  in  all  respects,  except  that  the 
plaintiff's  house  was  not  within  the  jurisdiction.  In  the  course 
of  this  evidence,  however,  it  clearly  appeared  that  the  two  attor- 
neys had  merely  handed  the  precept  to  the  bailiff  to  be  executed ; 


334  CONDUCT    OF   THE   TRIAL,  [ChAP.  IV. 

and  it  was  now  contended  that  they  were  not  liable  to  an  action 
of  trespass,  if  he  acted  beyond  the  bounds  of  his  franchise,  which 
it  was  his  duty  to  know,  and  not  theirs.  The  plaintiff  not  dis- 
puting this  general  proposition,  contended  that  the  attorneys 
had,  in  effect,  taken  upon  themselves  to  order  the  bailiff  to  enter 
the  plaintiff's  house.  The  circumstances  relied  upon  to  prove 
this  proposition  were  that,  all  these  persons  living  near  together 
and  being  acquainted,  and  the  plaintiff  having  notoriously  no 
other  house  than  this,  and  no  goods  but  what  were  in  this,  the 
bailiff  must  have  understood  the  attorneys,  when  he  received  the 
precept  from  them,  to  intend  that  he  should  make  the  seizure  in 
that  identical  house ;  and,  further,  that  one  of  the  attorneys  sent 
a  message  to  the  plaintiff  to  inform  him  that  Champion  was  about 
to  be  absent  a  short  time,  and  would  not  levy  on  that  day.  The 
special  pleas,  pleaded  by  all  the  defendants,  were  also  strongly 
urged,  as  showing  that  they  all  avowed  and  justified  the  fact  of 
levying  at  the  plaintiff's  house;  Tresidder  and  White  thus 
adopting  the  act  of  Champion,  as,  indeed,  they  might  fearlessly 
do,  if  they  believed  their  own  plea  that  the  house  was  within  the 
jurisdiction. 

Upon  consideration  these  grounds  appear  to  us  all  insufficient. 

1.  The  attorney,  who  places  a  writ  for  execution  in  the  hands 
of  an  officer,  does  a  lawful  act,  though  he  may  be  fully  persuaded 
that  the  officer  will  be  likely  to  execute  it  in  some  particular 
place  which  may  turn  out,  upon  inquiry,  to  be  out  of  his 
jurisdiction.  The  attorney's  opinion  upon  such  a  point  is  im- 
material, unless  he  induces  the  officer  to  act  upon  it.  He  is  not 
bound  to  form  anj^ ;  the  officer  must,  at  his  peril,  act  where  he  has 
the  power.  We  think  that  the  circumstances  of  the  ease  go  no 
further  than  to  show  that,  when  the  attorney  gave  the  precept, 
he  thought  it  would  be  executed  at  the  plaintiff's  house,  without 
directing  or  authorizing  it. 

2.  If  it  could  be  pressed  even  to  the  extent  of  implying  that 
the  attorney  knew  the  bailiff  intended  to  do  so,  we  cannot  say 
that  is  any  evidence  of  his  giving  such  authority.  The  bailiff 
may  have  told  him  his  intention,  and  the  attorney  may  have 
either  thought  him  right,  or  not  thought  about  the  matter.  That 
the  bailiff's  intention  originated  with  some  act  or  word  of  the 
attorney  is  not  at  all  evidenced  by  the  knowledge  now  supposed. 
If,  indeed,  the  bailiff  had  communicated  his  intention,  with 
respect  to  a  house  that  the  attorney  knew  to  be   out  of  the 


Jl 


Sec.  4.]  sowell  v.  champion.  335 

jurisdiction,  his  acquiescence  in  an  act  he  must  have  known  to  be 
illegal  might  possibly  have  made  him  a  joint  trespasser.  But 
every  thing  here  makes  it  impossible  to  doubt  the  attorney's  bona 
fide  belief  that  the  house  was  within  the  jurisdiction. 

3.  Furthermore,  the  plaintiff  argues  the  co-operation  of  all  the 
defendants  in  the  unlawful  entry  of  the  plaintiff's  house  from 
the  special  pleas.  He  contends  that,  if  the  attorney  gave  no 
special  directions  to  the  bailiff,  he  would  have  rested  on  the 
general  issue,  and  not  have  defended  himself  by  asserting  the 
lawfulness  of  the  act,  as  done  within  the  jurisdiction.  The  intro- 
duction, however,  of  a  special  plea  on  the  record  can  furnish  no 
evidence  in  answer  to  the  general  issue.  A  defendant,  by  ad- 
ducing evidence  on  a  second  plea,  may  strengthen  against  himself 
a  case  already  made  on  the  first ;  but  he  makes  no  such  case  by 
the  mere  averments  or  admissions  in  such  plea. 

Upon  the  whole,  therefore,  we  think  that,  at  the  close  of  the 
case,  as  the  two  defendants  Tresidder  and  White  would  have  been 
entitled,  if  sued  without  Champion,  to  a  nonsuit,  they  were 
entitled  to  a  positive  direction  from  the  judge  to  the  jury  that 
they  ought  to  find  a  verdict  in  their  favor;  and  that  he  was 
mistaken  in  leaving  it  at  all  as  an  open  question  for  their  con- 
sideration. It  follows  that,  as  these  defendants  are  to  have  the 
same  benefit  now  as  if  the  judge  had  given  that  strong  direction, 
and  a  verdict  had  passed  in  their  favor,  a  verdict  of  not  guilty 
ought  now  to  be  entered  for  them. 

Rule  absolute.'^ 

1  And  so  in  McCormaek  v.  Stand-  fendant.      He    only    asked    for    the 

ard   Oil   Co.,   60   N.   J.   L.    243.      A  whisky  and  got  it.     The  State,  there- 

faUure  of  proof  by  the  party  having  upon  rested,  and  the  defendant  asked 

the  burden  may,  of  course,  be  sup-  an   instruction   in   the   nature   of   a 

itTied  by  evidence  introduced  by  the  demurrer  to  the  evidence,  which  the 

adverse  party,  or  by  a  co-defendant.  Court  refused.     This  instruction,  we 

Philips,  C,  in  State  v.  Anderson,  81  think,  should  have  been  given.     The 

Mo.  78:  "The  State  introduced  one  evidence     did   not     show     that     the 

witness,  Henry  Smith,  who  testified,  whisky  thus  sold  was  less  than  one 

in  substance,  that  in  the  month  of  gallon.     The  evidence  was,  that  the 

September,    1880,    he    bought    some  witness      'bought      some      whisky.' 

whisky  of  the  defendant,  who  kept  Whether  more  or  less  than  one  gal- 

a    drug    store    in    Koscoe,    in    said  Ion    did    not    appear.      The   burden 

county.     He  paid  him   for   it,  and  rested  on  the  State  to  show  that  the 

had  no  prescription   therefor,   from  quantity  was  less  than   one  gallon, 

any  physician.      Nor   was   any   pre-  Section  5472,  Eevised  Statutes.    But 

pcription  demanded  or  given  by  de-  the  defendant  having  afterward,  in 


336  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

ARTZ  V.  CHICAGO,  R.  I.  &  P.  R.  RY.  CO. 

34  Iowa,  153.      [1871.] 

Action  to  recover  for  personal  injuries  to  the  plaintiff,  caused 
by  a  collision  of  defendant's  engine  and  train  of  cars  with  the 
plaintiff's  wagon,  in  which  he  was  riding,  at  a  highway  and 
railroad  crossing.  The  plaintiff,  in  his  petition,  alleged  his  owu 
care,  the  defendant's  negligence,  and  the  resulting  injury.  The 
defendant,  by  answer,  denied  the  plaintiff's  allegations  spe- 
cifically. There  was  a  jury  trial,  with  verdict  and  judgment 
for  $5,000  for  plaintiff.  The  defendant  appeals.  The  facts  are 
stated  in  detail  in  the  opinion. 

Cole,  j.  *  *  *  There  are  various  questions  made  by  the 
appellant's  counsel,  upon  the  instructions  given  and  refused. 
We  deem  it  unnecessary  to  examine  them,  for  the  reason  that, 
in  our  judgment,  the  case  must  be  finally  determined  upon  the 
plain  and  undisputed  facts  of  the  case.  The  testimony  shows, 
without  conflict,  and  upon  this  the  counsel  do  not  differ,  that 
the  railroad  and  highway  are  very  nearly  upon  a  level,  and  run 
substantially  parallel  for  a  considerable  distance,  and  are  in 
plain  view  of  each  other;  that,  for  the  distance  of  at  least  six 
hundred  and  sixty  feet  before  the  plaintiff  reached  the  crossing, 
he  conld  have  an  unobstructed  view  of  the  railroad  and  the  trains 
upon  it,  for  at  least  ten  hundred  and  ten  feet,  and  this  distance 
of  view  would  increase  as  he  approached  the  crossing;  that  the 
plaintiff  was  familiar  with  the  locality,  and  the  train  was  about 
on  time,  and  with  the  head-light  burning.  This  being  true,  we 
hold,  as  a  matter  of  law,  that  the  plaintiff  cannot  recover — since 
his  own  negligence  must  have  directly  contributed  to  the  injury'. 

But,  it  is  urged  by  the  appellee's  counsel  that  the  plaintiff 
testifies  that  he  did  both  look  and  listen  to  see  and  hear  the 
train,  but  did  not ;  and  that  this  testimony  shows  that  he  was 
not  guilty  of  contributory  negligence,  or,  at  the  very  least,  it 
made  that  a  question  of  fact  for  the  jury.     The  difficulty,  how- 

his  own  testimony,  supplied  the  de-  And  so  in  Ry.  v.  Carey,   115  111. 

feet,   he    is   not   now    entitled   to   a  115. 

reversal  for  the  error  of  the  Court  See  also,  Bopp  v.  N.  Y.  Elee.  Co., 

in  refusing  his  demurrer  to  the  evi-  177  N.  Y.  33,  where  the  proof  was 

dence.    Kelley  v.  H.  &  St.  Joe  R.  R.,  introduced   by  a  co-defendant. 
75  Mo.  141." 


Sec.  4.]  fletcher  v.  London  &  n.  w.  ry.  go.  337 

ever,  with  the  position  is  that  the  conceded  or  undisputed  facts 
being  true,  this  testimony  cannot,  in  the  very  nature  of  things, 
be  also  tnie.  It  constitutes,  therefore,  no  conflict.  Suppose  the 
fact  is  conceded  that  the  sun  was  shining  bright  and  clear  at  a 
specified  time,  and  a  witness,  having  good  eyes,  should  testify 
that  at  the  time  he  looked  and  did  not  see  it  shine.  Could  this 
testimony  be  true  ?  The  witness  may  have  been  told  that  it  was 
necessary  to  prove  in  the  case  that  he  did  look  and  did  not  see  the 
sun  shine ;  he  may  have  thought  of  it  with  a  desire  that  it  should 
have  been  so;  he  may  have  made  himself  first  believe  it  was  so, 
and  this  belief  may  have  ripened  into  a  conviction  of  its  verity, 
and,  possibly,  he  even  may  testify  to  it  in  the  self-consciousness 
of  integrity.  But,  after  all,  in  the  very  nature  of  things,  it  can- 
not be  true,  and  hence  cannot,  in  the  law,  form  any  basis  for  a 
conflict  upon  which  to  rest  a  verdict.  A  man  may  possibly  think 
he  sees  an  object,  which  has  no  existence  in  fact,  but  which  it 
may  be  ditficult,  if  not  impossible,  to  prove  did  not  exist  or  was 
not  seen.  But  an  object  and  power  of  sight  being  conceded, 
the  one  may  not  negative  the  other. 

In  this  case  the  plaintiff  had  good  eyes ;  the  train  was  ap- 
proaching him  in  the  night,  with  the  engine 's  head-light  burning 
brightly;  if  the  plaintiff  looked,  he  must  have  seen  it,  or  he 
must  have  looked  very  negligently  and  carelessly — in  either  case, 
he  was  necessarily,  in  the  eyes  of  the  law,  guilty  of  contributory 
negligence,  precluding  his  right  to  recover.     *     *     * 


Reversed. 


FLETCHER  v.  LONDON  &  N.  W.  RY.  CO. 
L.  R.     [1892.]     1  Q.  B.  D.  122. 

Motion  by  the  plaintiff  for  a  new  trial. 

The  action  was  for  damages  for  personal  injuries  alleged  to 
have  been  caused  through  the  negligence  of  the  defendants' 
servants. 

1  Accord:   Payne  v.  Ey.,   136  Mo. 
562;  Stafford  v.  Ey.,  110  Wis.  331. 

H.  T.  P.— 22 


338  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

At  the  trial,  Wright,  J.,  after  hearing  the  opening  of  the 
plaintiff's  counsel,  stating  the  ease  which  he  expected  to  prove, 
nonsuited  the  plaintiff  without  the  consent  of  his  counsel,  and 
in  spite  of  his  insisting  that  he  ought  to  be  allowed  to  call  his 
witnesses. 

Lord  EscHER,  M.  R.  I  am  of  opinion  that  the  learned  judge 
struck  too  soon.  I  will  state  the  proposition  in  its  broadest 
form.  In  my  opinion  a  judge  has  no  right,  without  the  consent 
of  the  plaintiff's  counsel,  to  nonsuit  the  plaintiff  upon  his  coun- 
sel 's  opening  statement  of  the  facts.  The  opening  of  counsel  may 
be  incorrect  in  consequence  of  his  having  had  wrong  instructions. 
Owing  to  some  accident,  even  with  the  greatest  care,  the  evidence 
of  the  witnesses  when  they  are  called  may  differ  from  that  which 
has  been  opened  by  counsel.  It  is  for  that  very  reason  that  a 
right  of  reply  in  given  to  the  plaintiff's  counsel,  and  in  recent 
times  a  right  to  sum  up  the  evidence  has  been  given  to  the  plain- 
tiff's counsel,  and  the  defendant's  respectively,  after  his  wit- 
nesses have  been  called.  The  experience  of  judges  and  of  prac- 
titioners shows  that  the  evidence  often  turns  out  to  be  somewhat 
different  from  that  which  appears  in  the  instructions  given  to 
counsel.  Therefore  I  state  this  proposition  in  its  full  extent — a 
judge  has  no  right  to  nonsuit  a  plaintiff  upon  his  counsel's  open- 
ing without  the  consent  of  the  counsel.  That  is  what  the  learned 
judge  has  done  in  the  present  case.  There  was  no  assent  on  the 
part  of  the  plaintiff's  counsel.  On  the  contrary,  the  plaintiff's 
counsel  insisted  upon  his  right  to  have  the  plaintiff's  witnesses 
called,  but,  notwithstanding  this,  the  learned  judge  persisted  in 
nonsuiting  the  plaintiff  on  his  counsel 's  opening.  I  think  he  was 
wrong  in  so  doing,  and  the  case  must  go  down  for  trial. 

Kay,  L.  J.  I  will  not  venture  to  say  a  word  about  any  techni- 
calities of  practice  which  arise  in  this  case.  That  which  leads  me 
to  concur  in  the  judgment  of  the  other  members  of  the  court  is 
this — I  am  simply  startled  at  the  notion  that  a  suitor  may  lose  his 
cause  because  his  counsel  in  his  opening  happens  by  some  acci- 
dent to  have  omitted  to  state,  or  to  have  misstated,  some  fact 
which,  if  proved,  and  the  case  had  gone  to  the  jury,  might  have 
so  influenced  them  as  to  induce  them  to  decide  in  the  suitor's 
favor.  That  this  should  be  part  of  the  practice  of  English 
courts  of  justice  would  be  to  me  a  very  surprising  thing  indeed. 
I  agree  that  the  case  ought  to  be  tried. 

Lord  EsHER,  M.  R.     The  application  in  this  court  must  be 


Sec.  4.]  oscanyan  v.  arms  co.  339 

allowed  with  costs.     The  costs  of  the  trial  will  abide  the  result 
of  the  next  trial. 

Order  for  netv  trial  accordingly.'^ 


OSCANYAN  V.  ARMS  CO. 

130  U.  S.  261.     [1880.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  the  sum.  of  $136,000,  alleged  to 
be  due  to  the  plaintiff  upon  a  contract  with  the  defendant,  as 
commissions  on  the  sales  of  fire-arms  to  the  Turkish  govern- 
ment, effected  through  his  influence.  The  defendant  pleads  the 
general  issue.  At  the  time  the  transactions  occurred,  out  of 
which  this  action  has  arisen,  the  plaintiff  was  consul-general  of 
the  Ottoman  government  at  the  port  of  New  York.  The  defend- 
ant is  a  corporation,  created  under  the  laws  of  Connecticut. 
The  action  was  originally  commenced  in  the  Supreme  Court  of 
New  York,  and  on  motion  of  the  defendant,  was  removed  to  the 
Circuit  Court  of  the  United  States.  When  it  was  called  for 
trial,  and  the  jury  was  impaneled,  one  of  the  plaintiff's  counsel, 
as  preliminary  to  the  introduction  of  testimony,  stated  to  the 
court  and  jury  the  issues  in  the  case,  and  the  facts  which  they 
proposed  to  prove.  From  such  statement  it  appeared  that  the 
sales  for  which  commissions  were  claimed  by  the  plaintiff  were 
made  whilst  he  was  an  officer  of  the  Turkish  government,  and 
through  the  influence  which  he  exerted  upon  its  agent  sent  to 
this  country  to  examine  and  report  in  regard  to  the  purchase  of 
arms.  The  particulars  of  the  services  rendered  will  be  more 
fully  mentioned  hereafter.  It  is  sufficient  now  to  say  that  the 
defendant,  considering  that  the  facts  which  the  plaintiff  proposed 
to  prove  showed  that  the  contract  was  void  as  being  corrupt  in 
itself  and  prohibited  by  morality  and  public  policy,  upon  which 
no  recovery  could  be  had,  moved  the  court  to  direct  the  jury 
to  render  a  verdict  in  its  favor.  The  court  thereupon  inquired 
of  the  plaintiff's  counsel  if  they  claimed  or  admitted  that  the 
statements  which  had  been  made  were  true,  to  which  they  re- 
plied in  the  affirmative.     Argument   was   then   had   upon   the 

1  Accord :  Pietch  v.  Pietch,  245 
111.  454;  but  see  Spicer  v.  Bonker, 
45  Mich.  630. 


340  CONDUCT   OF   THE   TRIAL,  [ChAP.  IV. 

motion,  after  which  the  court  directed  the  jury  to  find  a  verdict 
for  the  defendant,  which  was  accordingly  done.  Judgment  being 
entered  upon  it,  the  case  was  brought  to  this  court  for  review. 
The  reversal  of  the  judgment  is  sought  for  alleged  errors  of  the 
court  below  in  three  particulars  : 

1st.  In  directing  a  verdict  for  the  defendant  upon  the  opening 
statement  of  the  plaintiff's  counsel; 

2d.  In  holding  that  the  question  of  the  illegality  of  the  con- 
tract could  be  considered  in  the  case,  the  same  not  having  been 
specially  pleaded;  and, 

3d.  In  adjudging  that  the  contract  set  forth  in  the  opening 
statement  was  illegal  and  void. 

Each  of  these  grounds  will  be  carefulh'  examined. 

1.  Several  reasons  are  presented  against  the  power  of  the  court 
to  direct  a  verdict  upon  the  statement  of  the  facts  which  the 
plaintiff  proposed  to  prove,  that  might  be  more  properly  urged 
against  its  exercise  in  particular  cases.  The  power  of  the  court 
to  act  in  the  disposition  of  a  trial  upon  facts  conceded  by  counsel 
is  as  plain  as  its  power  to  act  upon  the  evidence  produced.  The 
question  in  either  case  must  be  whether  the  facts  upon  which  it  is 
called  to  instruct  the  jury  be  clearly  established.  If  a  doubt 
exists  as  to  the  statement  of  counsel,  the  court  will  withhold  its 
direction,  as  where  the  evidence  is  conflicting,  and  leave  the  mat- 
ter to  the  determination  of  the  jury. 

In  the  trial  of  a  cause  the  admissions  of  counsel,  as  to  matters 
to  be  proved,  are  constantly  received  and  acted  upon.  They  may 
dispense  with  proof  of  facts  for  which  witnesses  would  otherwise 
be  called.  They  may  limit  the  demand  made  or  the  set-off 
claimed.  Indeed,  any  fact,  bearing  upon  the  issues  involved, 
admitted  by  counsel,  may  be  the  ground  of  the  court's  procedure 
equally  as  if  established  by  the  clearest  proof.  And  if  in  the 
progress  of  a  trial,  either  by  such  admission  or  proof,  a  fact  is 
developed  which  must  necessarily  put  an  end  to  the  action,  the 
court  may,  upon  its  own  motion,  or  that  of  counsel,  act  upon  it 
and  close  the  case.  If,  on  a  trial  for  a  homicide,  to  take  an 
illustration  suggested  by  counsel,  it  should  appear  from  the  open- 
ing statement  that  the  accused  had  been  pardoned  for  the  offense 
charged,  it  would  be  a  waste  of  time  to  listen  to  the  evidence  of 
his  original  criminality;  for  if  established  he  would  still  be  en- 
titled to  his  discharge  by  force  of  the  pardon.  So  in  a  civil 
action,  if  it  should  appear  from  the  opening  statement  that  it  is 


SeO.  4.]  OSCANYAN   V.    ARMS    CO,  341 

brought  to  obtain  compensation  for  acts  which  the  law  denounces 
as  corrupt  and  immoral,  or  declares  to  be  criminal,  such  as 
attempts  to  bribe  a  public  officer,  or  to  evade  the  revenue  laws, 
or  to  embezzle  the  public  funds,  the  court  would  not  hesitate 
to  close  the  case  without  delay.  Of  course,  in  all  such  proceed- 
ings  nothing  should  be  taken,  without  full  consideration,  against 
the  party  making  the  statement  or  admission.  He  should  be 
allowed  to  explain  and  qualify  it,  so  far  as  the  truth  will  permit ; 
but  if,  with  such  explanation  and  qualification,  it  should  clearly 
appear  that  there  could  be  no  recovery,  the  court  should  not 
hesitate  to  so  declare  and  give  such  direction  as  will  dispose  of 
the  action. 

Here  there  were  no  unguarded  expressions  used,  nor  any 
ambiguous  statements  made.  The  opening  counsel  was  fully 
apprised  of  all  the  facts  out  of  which  his  client's  claim  originated, 
and  seldom  was  a  case  opened  with  greater  fullness  of  detail. 
He  dwelt  upon  and  reiterated  the  statement  of  the  fact  which 
constituted  the  ground  of  the  court's  action  in  directing  a  ver- 
dict for  the  defendant,  namely,  that  it  was  Oscanyan's  influence 
alone  which  controled  the  agent  of  the  Turkish  government ;  and 
for  the  use  of  that  influence  the  defendant  had  agreed  to  give 
the  compensation  demanded — that  is  to  say,  that  whilst  an  officer 
of  the  Turkish  government  the  plaintiff  had  stipulated  for  a 
commission  on  contracts  obtained  from  it  through  his  personal 
influence  over  its  agent.  Had  the  case  been  pending  in  a  court 
of  some  of  the  States,  or  in  an  English  court,  a  nonsuit  would 
have  been  ordered,  if  the  facts  stated  had  been  deemed  fatal  to 
the  action.  Involuntary  nonsuits  not  being  allowed  in  the  Fed- 
eral Courts,  the  course  adopted  was  the  proper  proceeding.  The 
difference  in  the  two  modes  is  rather  a  matter  of  form  than  of 
substance,  except  in  the  case  of  a  nonsuit  a  new  action  may  be 
brought,  whereas  in  the  case  of  a  verdict  the  action  is  ended, 
unless  a  new  trial  be  granted  either  upon  motion  or  upon  appeal. 

The  language  of  this  court  in  numerous  cases  is  in  accordance 
with  these  views,  though  used  with  reference  to  directing  a 
verdict  after  evidence  is  received.  But,  as  already  stated,  it 
cannot  make  any  difference  as  to  the  power  of  the  court,  whether 
the  facts  be  developed  by  the  evidence  oi  be  admitted  by  coun- 

onl    1         ^         #         4f^ 

1  Compare      Redding      v.      Puget 
Sound  Iron  Co.,  36  Wash.  642. 


342  CONDUCT   OP   THE   TRIAL.  [ChAP.  IV. 

Indeed,  there  can  be,  at  this  day,  no  serious  doubt  that  the 
court  may  at  any  time  direct  a  verdict  when  the  facts  are  undis- 
puted, and  that  the  jury  should  follow  such  direction.  The 
maxim  that  questions  of  fact  are  to  be  submitted  to  the  jury, 
and  not  to  be  determined  by  the  court,  is  not  violated  by  this 
proceeding  any  more  than  by  a  nonsuit  in  a  State  Court  where 
the  plaintiff  fails  to  make  out  his  case.  The  intervention  of  the 
jury  is  required  only  where  some  question  of  fact  is  controverted. 

Our  conclusion,  therefore,  is  that  the  first  position  of  the 
plaintiff  is  not  well  taken. 

The  suggestion  in  the  argument,  that  the  counsel  who  made 
the  opening  had  been  called  into  the  case  only  t  vo  days  before 
the  trial,  and  was  not,  therefore,  fully  prepared  to  open  it,  does 
not  merit  consideration.  In  the  first  place,  the  record  does  not 
show  that  any  application  was  made  to  the  court  for  a  postpone- 
ment of  the  trial  on  that  ground;  in  the  second  place,  two  days 
ought  to  have  been  ample  time  for  the  counsel  to  acquaint  him- 
self with  the  essential  facts  of  the  case ;  and  in  the  third  place, 
no  new  fact  is  even  now  mentioned  that  would  have  materially 
changed  his  statement. 

2.  The  position  of  the  plaintiff  that  the  illegality  of  the  con- 
tract in  suit  cannot  be  noticed,  because  not  affirmatively  pleaded, 
does  not  strike  us  as  having  much  weight.  We  should  hardly 
deem  it  worthy  of  serious  consideration  had  it  not  been  earnestly 
pressed  upon  our  attention  by  learned  counsel.  The  theory  upon 
which  the  action  proceeds  is  that  the  plaintiff  has  a  contract, 
valid  in  law,  for  certain  services.  Whatever  shows  the  in- 
validity of  the  contract,  shows  that  in  fact  no  such  contract  as 
alleged  ever  existed.  The  general  denial  under  the  Code  of 
Procedure  of  New  York,  or  the  general  issue  at  common  law, 
is,  therefore,  sustained  by  proof  of  the  invalidity  of  the  trans- 
action which  is  designated  in  the  complaint  or  declaration  as  a 
contract. 

Whilst,  however,  at  the  common  law,  under  the  general  issue 
in  assumpsit,  it  was  always  admissible  to  give  in  evidence  any 
matter  which  showed  that  the  plaintiff  never  had  a  valid  cause 
of  action,  in  practice  many  other  matters  were  allowed  under 
that  plea,  such  as  went  to  the  discharge  of  the  original  cause  of 
action,  and  showed  that  none  subsisted  at  the  commencement  of 
the  suit — such  as  payment,  release,  accord  and  satisfaction,  and  a 
former  recovery,  and  excuses  for  non-performance  of  the  con- 


Sec.  4.]  oscanyan  v.  arms  co.  343 

tract ;  and  also  that  it  had  become  impossible  or  illegal  to  perform 
it.  1  Chitty,  Pleading,  493;  Craig  v.  The  State  of  Missouri, 
4  Pet.  410-426;  Edson  v.  Weston,  7  Cow.  (N.  Y.)  278;  Young 
V.  Rummell,  2  Hill  (N.  Y.),  478.  It  followed  that  there  were 
many  surprises  at  the  trial  by  defenses  which  the  plaintiff  was 
not  prepared  to  meet.  The  English  courts,  under  the  authority 
of  an  act  of  Parliament  passed  in  the  reign  of  William  IV, 
adopted  rules  which,  to  some  extent,  corrected  the  evils  arising 
from  his  practice  of  allowing  defenses  under  the  general  issue 
which  did  not  go  directly  to  the  validity  of  the  original  cause 
of  action.  And  the  Code  of  Procedure  of  New  York  did  away 
entirely  with  the  practice  in  that  State,  and  required  parties 
relying  upon  anything  which,  admitting  the  original  existence 
of  the  cause  of  action,  went  to  show  its  discharge — such  as  a 
release  or  payment,  or  other  matter — to  plead  it  specially,  in 
order  that  the  plaintiff  might  be  apprised  of  the  grounds  of 
defense  to  the  action.  We  do  not  understand  that  the  code 
makes  any  other  change  in  the  matters  admissible  under  the 
general  denial. 

But  if  we  are  mistaken  in  this  view  of  the  system  of  procedure 
adopted  in  New  York,  and  of  the  defenses  admissible  according 
to  it  under  a  general  denial  in  an  action  upon  a  contract,  our 
conclusion  would  not  be  changed  in  the  present  case.  Here  the 
action  is  upon  a  contract  which,  according  to  the  view  of  the 
judge  who  tried  the  case,  was  a  corrupt  one,  forbidden  by  morality 
and  public  policy.  We  shall  hereafter  examine  into  the  correct- 
ness of  this  view.  Assuming  for  the  present  that  it  was  a  sound 
one,  the  objection  to  a  recovery  could  not  be  obviated  or  waived 
by  any  system  of  pleading,  or  even  by  the  express  stipulation  of 
the  parties.  It  was  one  which  the  court  itself  was  bound  to 
raise  in  the  interest  of  the  due  administration  of  justice.  The 
court  will  not  listen  to  claims  founded  upon  services  rendered  in 
violation  of  common  decency,  public  morality,  or  the  law.  His- 
tory furnishes  instances  of  robbery,  arson,  and  other  crimes  com- 
mitted for  hire.  If,  after  receiving  a  pardon,  or  suffering  the 
punishment  imposed  upon  him,  the  culprit  should  sue  the  insti- 
gator of  the  crime  for  the  promised  reward — if  we  may  suppose 
that  audacity  could  go  so  far — the  court  would  not  hesitate  a 
moment  in  dismissing  his  case  and  sending  him  from  its  presence, 
whatever  might  be  the  character  of  the  defense.  It  would  not 
be  restrained  by  defects  of  pleading,  nor,  indeed,  could  it  be  by 


344  CONDUCT    OF   THE   TRIAD.  [ChAP.  IV. 

the  defendant's  waiver,  if  we  may  suppose  that  in  such  a  matter 

it  would   be   offered.     What  is  so  obvious  in   a   case   of  such 

aggravated  criminality^  as  the  one  supposed,  is  equally  true  in  all 

cases  where  the  services  for  which  compensation  is  claimed  are 

forbidden  by  law,  or  condemned. by  public  decency  or  morality. 
*     *     * 

[On  the  third  point,  the  court  held  the  contract  illegal.] 

Judgment  affirmed. 


WALLNER  V.  CHICAGO  TRACTION  CO. 

245  Illinois,  148.      [1910.] 

Mr.  Justice  Dunn  delivered  the  opinion  of  the  court: 

The  defendant  in  error,  while  a  passenger  upon  a  street  car 
of  the  Chicago  Consolidated  Traction  Company,  the  plaintiff 
in  error,  was  injured  by  a  collision  with  a  train  of  the  Chicago, 
Milwaukee  and  St.  Paul  Railroad  Company.  He  sued  both 
corporations  in  an  action  on  the  case.  The  plaintiff  in  error 
appeared  and  filed  the  general  issue.  The  railroad  company  did 
not  appear,  and  the  cause,  on  the  motion  of  the  defendant  in 
error,  was  discontinued  as  to  it.  On  a  trial  the  defendant  in 
error  recovered  a  judgment  against  the  plaintiff  in  error,  which 
the  Appellate  Court  affirmed.  The  only  question  presented  on 
this  appeal  is  whether  there  was  an  accord  and  satisfaction 
between  the  defendant  in  error  and  the  railroad  company,  which 
was  charged  as  a  joint  tort  feasor  with  the  plaintiff  in  error. 

The  only  evidence  on  the  question  of  an  accord  and  satisfaction 
was  the  following  testimony  of  the  defendant  in  error  himself : 

Q.  ' '  You  have  received  from  the  railroad  company  a  thousand 
dollars  on  account  of  this  accident,  haven't  you?" 

A.  "I  believe  so." 

Q.  "On  account  of  your  injury?" 

A.  "Yes,  sir." 

Q.  "So  you  don't  have  any  claims  against  it  now?" 

A.  "No,  sir.  *  *  *  I  made  this  arrangement — got  the 
money  from  the  St.  Paul  road — about  October  of  last  year. ' ' 

Q.  "They  were  sued  jointly  with  the  street  car  company  in 
this  case  ?  When  you  started  the  suit  you  started  it  against  both 
of  them?" 


Sec.  4.]  wallner  v.  Chicago  traction  co.  345 

Mr.  Condon:    "When  I  started  it?" 
A.  "Yes,  sir." 

Mr.  Bailey:    "When  your  lawyer  started  it;  yes,  that  is  the 
better  way  to  put  it. ' ' 
A.  "Yes,  sir." 

There  is  no  doubt  that  a  release  of  one  of  several  joint  tort 
feasors  releases  all  and  that  an  accord  and  satisfaction  by  one 
joint  tort  feasor  has  the  same  effect  as  to  all.  (City  of  Chicago 
V.  Babcock,  143  111.  358;  West  Chicago  Street  Railroad  Co.  v. 
Piper,  165  id.  325.)  It  is  equally  certain  that  payment  and 
acceptance  of  a  sum  of  money  in  satisfaction  of  an  unliquidated 
demand  is  a  good  accord  and  satisfaction.  (Ennis  v.  Pullman 
Palace  Car  Co.,  165  111.  161.)  The  evidence  here  is  meager  but 
it  is  uncontradicted.  After  bringing  suit  against  both  corpora- 
tions jointly,  the  defendant  in  error  received  of  the  railroad  com- 
pany $1,000  on  account  of  his  injury  and  dismissed  his  suit  as  to 
it,  having  no  further  claim  against  it.  This  evidence  indicates 
that  the  payment  of  $1,000  was  received  in  satisfaction  of  the 
liability  of  the  railroad  company,  which  was  thereby  relieved  of 
all  further  liability  on  account  of  the  injury.  If  the  facts  of  the 
payment  and  acceptance  of  this  sum,  the  dismissal  of  the  suit 
against  the  railroad  company,  and  the  statement  of  the  defendant 
in  error  that  he  had  no  further  claim  against  it,  are  capable  of 
another  construction,  the  burden  of  furnishing  the  explanation 
or  qualification  which  would  give  them  a  different  effect  was 
upon  the  defendant  in  error. 

The  question  of  accord  and  satisfaction  was  raised  by  motions 
made  at  the  close  of  the  plaintiff's  evidence  and  at  the  close  of 
all  the  evidence  to  direct  a  verdict  for  the  defendant.  It  is  in- 
sisted on  behalf  of  the  defendant  in  error  that  these  motions  did 
not  preserve  the  question  for  review  because  they  were  general 
and  did  not  set  forth  the  grounds  upon  which  they  were  made.^ 
The  only  grounds  upon  which  such  a  motion  can  be  made  are 
that  the  declaration  does  not  state  a  cause  of  action,  or  that  the 
evidence,  with  all  reasonable  inferences  to  be  drawn  therefrom, 
taken  most  strongly  against  the  maker  of  the  motion,  does  not 
fairly  tend  to  support  a  verdict  for  the  plaintiff;  and  it  is  not 
necessary  to  set  out  in  such  motion  the  particular  defect  of  proof 

1  See  note  to  West  Chicago  Street 
Ey.  Co.  V.  Foster,  17.5  111.  396,  post 
p.  359. 


346 


CONDUCT   OF   THE   TRIAL. 


[Chap.  IV. 


claimed  to  exist.  The  party  making  the  motion  may  rely  upon 
the  failure  of  proof  in  any  respect  necessary  to  sustain  a  verdict. 
The  question  presented  by  such  a  motion  is  not  necessarily,  as 
insisted  upon  by  defendant  in  error,  whether  the  evidence  tends 
to  support  the  allegations  of  the  declaration,  but  is  whether  there 
is  evidence  legally  tending  to  sustain  a  verdict  against  the  party 
making  the  motion.  (Wolf  v.  Chicago  Sign  Printing  Co.,  233 
111.  501.)  The  question  therefore  depends  upon  the  character  of 
the  issue.  Where  evidence  of  an  affirmative  def^-nse  is  offered,  as 
in  this  case,  it  is  proper  to  direct  a  verdict  for  the  defendant, 
even  though  all  the  averments  of  the  declaration  are  proved,  if 
the  evidence  of  the  affirmative  defense  is  not  contradicted  or 
explained.2 

It  is  contended  in  behalf  of  defendant  in  error  that  the  use  of 
the  words  "on  account  of,"  in  connection  with  the  payment, 
indicates  a  partial  payment  rather  than  a  full  settlement.  The 
fact  that  the  effect  of  the  payment  was  to  extinguish  the  claim 
of  the  defendant  in  error  answers  this  position.  A  payment 
"on  account  of  the  accident"  means  a  payment  because  of  the 
accident,  and  may  be  either  on  account  or  in  full  settlement. 
The  defendant  in  error  stated  that  he  had  no  claim,  and  the 
legitimate  inference  is  that  the  payment  was  a  full  settlement. 
No  explanation  of  the  language  being  offered,  it  must  be  given 
its  ordinary  meaning. 

It  is  insisted  that  the  defense  arising  out  of  the  release  of  a 


2  The  same  rule  is  applied  to  the 
defense  of  contributory  negligence 
made  out  by  the  plaintiff 's  evidence, 
whether  on  direct  or  cross-examina- 
tion. Ey.  V.  Houston,  95  U.  S.  697 ; 
Schofield  V.  Ey.,  114  U.  S.  615; 
Elliott  V.  Ey.,  150  U.  S.  245 ;  Ey.  v. 
Fruman,  174  U.  S.  379;  Hudson  v. 
Ey.,  101  Mo.  13 ;  Fleming  v.  Ey.,  49 
Cal.  253;  Donaldson  v.  Ey.,  21  Minn. 
293;  Hooper  v.  Ey.,  72  Kan.  422; 
Exp.  Co.  V.  Nichols,  33  N.  J.  L.  434. 

The  English  cases  on  this  point 
are  in  some  confusion.  In  Dublin, 
etc.  Ey.  V.  Slattery,  3  Appeal  Cases 
(H.  of  L.)  1155,  it  was  assumed 
that  the  burden  was  on  the  defend- 
ant to  prove  contributory  negligence, 


and  this  is  given  in  one  of  the  opin- 
ions as  a  reason  for  refusing  to  di- 
rect a  verdict.  On  the  whole,  that 
case  appears  to  have  gone  on  the 
ground  that  there  was  room  for  a 
fair  difference  of  opinion.  See  com- 
ments by  Lord  Justice  Bowen  in 
Davey  v.  London  &  S.  W.  Ey.,  L.  E. 
12  Q.  B.  D.  (C.  A.)  70.  In  Wright 
v.  Midland  Ey.  Co.,  51  L.  T.  E.  539 
(Q.  B.  D.  1884),  it  was  held  that  a 
verdict  should  have  been  directed 
for  the  defendant  on  the  ground  of 
contributory  negligence  shown  by 
the  plaintiff's  evidence,  but  it  was 
assumed  that  the  burden  was  on  the 
plaintiff  to  show  the  defendant  solely 
to  blame. 


Sec.  4.]  wallner  v.  Chicago  traction  co.  347 

joint  tort  feasor  was  not  made  or  argued  in  the  trial  court  on 
the  motion  to  direct  the  verdict.  On  this  question  we  can  look 
only  to  the  record.  Such  defense  was  within  the  scope  of  the 
motion.  The  defendant  had  a  right  to  rely  upon  it,  and  we  must 
presume  that  it  did  so  in  the  absence  of  a  showing  in  the  bill 
of  exceptions  to  the  contrary. 

It  is  further  insisted  that  it  does  not  appear  that  the  plaintiff 
in  error  and  the  railroad  company  were  joint  tort  feasors,  and 
that  the  payment  of  money  by  one  who  is  not,  in  fact,  a  joint 
tort  feasor,  and  his  release,  does  not  discharge  others  who  may  be 
liable.  Without  deciding  the  correctness  of  this  legal  proposi- 
tion, it  is  sufficient  to  say  that  the  declaration  charges  the  plaintiff 
in  error  and  the  railroad  company  as  joint  tort  feasors;  that  the 
uncontradicted  evidence  shows  that  at  the  time  of  the  collision 
the  railroad  company  was  running  its  train  at  a  speed  in  excess 
of  that  allowed  by  the  ordinance  of  the  city,  and  that  the  street 
car  was  backing  off  of  the  crossing  when  it  was  struck. 

It  is  contended  that  the  plaintiff  in  error  having  requested 
instructions,  which  were  given,  submitting  to  the  jury,  as  a 
question  of  fact,  whether  the  defendant  in  error  received  $1,000 
from  the  railroad  company  in  settlement  of  its  liability,  and 
stating  that  if  defendant  was  found  guilty  only  such  amount 
should  be  allowed  plaintiff  in  the  assessment  of  damages  as,  to- 
gether with  what  he  had  already  received  from  the  railroad  com- 
pany, would  compensate  him  for  his  injury,  thereby  conceded 
that  the  evidence  was  subject  to  more  than  one  interpretation, 
and  cannot  now  insist  that  it  is  subject  only  to  the  one  interpre- 
tation which  required  a  verdict  in  its  favor,  but  is  bound  by  the 
theory  of  the  case  indicated  by  these  instructions.  These  in- 
structions M^ere  not  requested  by  the  plaintiff  in  error  until  after 
the  adverse  decision  of  its  motion  to  direct  a  verdict.  The  court 
having  refused,  on  this  motion,  to  adopt  the  theory  of  the  plain- 
tiff in  error,  it  was  not  obliged  to  abandon  its  defense  on  penalty 
of  waiving  its  right  to  question,  on  appeal,  this  decision  of  the 
court.  If  it  proceeded  further  it  must  do  so  according  to  the 
court's  view  of  the  law,  and  did  not  thereby  waive  its  right  to 
question  that  view  in  the  Appellate  Court  through  its  exception 
taken  to  the  decision  of  its  motion.  North  Chicago  Electric 
Railway  Co.  v.  Pewser,  190  111.  67;  Illinois  Central  Railroad  Co. 
v.  Swift,  213  id.  307 ;  Chicago  Terminal  Railroad  Co.  v.  Schiavone, 
216  id.  275. 


348  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

The  judgment  of  the  Appellate  Court  and  of  the  Circuit  Court 
will  be  reversed  and  the  cause  remanded  to  the  latter  court  for  a 
new  trial. 

Beversed  mid  remanded. 

ViCKERS,  C.  J.,  and  Carter,  J.,  dissenting. 


HOPKINSON  V.  LEEDS. 
78  Pennsylvania  St.  396.     [1875.] 

Mr.  Justice  Williams  delivered  the  opinion  of  the  court,  Oc- 
tober 18th,  1875. 

This  was  an  action  of  debt,  for  an  escape  of  the  plaintiff's 
debtor,  after  his  arrest  by  the  sheriff  upon  a  writ  of  capias  ad 
satisfaciendmn.  On  the  trial,  a  judgment  of  non-suit  was  en- 
tered against  the  plaintiffs,  and  the  court  in  banc  refused  to  set 
it  aside.  If  there  was  no  sufficient  evidence  to  maintain  the  action, 
the  judgment  of  non-suit  was  rightly  entered ;  otherwise  the  case 
should  have  been  submitted  to  the  jury  with  the  proper  instruc- 
tions. It  appeared  from  the  debtor's  own  testimony  that  he  was 
permitted  by  the  sheriff's  deputies,  upon  presenting  himself  at 
the  sheriff's  office  every  morning,  to  go  at  large  until  the  next  day 
from  the  time  of  his  arrest  until  he  gave  bond  for  his  discharge 
under  the  insolvent  laws,  and  that  for  this  indulgence  he  and  his 
nephew  paid  them  the  sum  of  seventy  dollars.  This  was  clearly 
a  permissive  escape,  for  which  the  defendant  was  answerable. 
It  is  true  that  under  the  act  of  14th  of  February,  1729-30,  section 
14,  1  Sm.  Laws  186,  the  sheriff  was  not  bound  to  commit  the 
prisoner  to  jail  immediately  upon  his  arrest,  but  it  was  his  duty 
to  keep  him  in  safe  and  strict  custody,  and  if  he  allowed  him  to 
go  at  large  for  the  shortest  time,  either  before  or  after  the  return 
day  of  the  writ,  without  the  consent  of  the  plaintiffs,  it  was  an 
escape  for  which  he  was  liable.  It  is  no  answer  to  the  escape 
that  the  prisoner  voluntarily  returned  and  surrendered  himself 
to  the  custody  of  the  sheriff,  or  that  he  was  subsequently  dis- 
charged under  the  insolvent  laws.  But  it  is  insisted  that  he  was 
allowed  to  go  at  large  after  his  arrest,  with  the  consent  of  the 
plaintiff's  attorney.  Undoubtedly  the  attorney  had  authority 
to  consent  to  his  discharge  from  the  arrest,  and  if  he  did,  the 


Sec.  4.]  hopkinson  v,  leeds.  349 

sheriff  is  not  responsible  for  an  escape.     But  to  warrant  the 
judgment  of  non-suit,  the  evidence  of  such  consent  should  be 
clear,  direct  and  positive,  and  a  part  of  the  plaintiff's  case.    The 
only  evidence  tending  to  show  the  alleged  consent,  is  the  testi- 
mony of  the  sheriff's  clerk,  who  was  called  by  the  plaintiffs  to 
prove  the  time  the  writ  came  to  the  sheriff's  hands.    On  his  cross- 
examination,  under  exception  by  the  plaintiffs,  he  said:    "After 
the  writ  had  been  in  our  hands  a  day  or  two,  I  had  a  conversation 
with  Mr.  Hart  (the  plaintiff's  attorney)  on  the  subject.    I  asked 
Mr.  Hart  in  the  vestibule,  between  our  office  and  the  register's, 
what  we  should  do  with  Mr.  Cooper;  whether  we  should  send 
him  to  prison  or  not.     Cooper  was  then  in  the  sheriff's  office  in 
custody.    He  said  there  was  no  necessity  of  that,  but  if  the  deputy 
would  press  him,  he  or  his  friends  would  find  the  money  or  pay 
the  money."     It  cannot  be  pretended  that  there  is  anything  in 
this  language  showing  an  express  consent  by  Mr.  Hart  that  the 
prisoner  might  go  at  large;  and  if  not,  is  there  anything  from 
which  such  permission  may  be  fairly  implied?     If  he  said  there 
was  no  necessity  of  sending  Cooper  to  prison,  in  answer  to  the 
inquiry  of  the  sheriff's  clerk,  does  it  follow  that  he  intended  to 
consent  to  his  discharge  from  the  arrest  ?    If  so,  why  did  he  say 
in  the  same  breath,  and  as  a  part  of  his  answer,  that  if  the 
deputy  would  press  him  he  or  his  friends  would  find  or  pay  the 
money?    How  could  the  deputy  "press  him"  if  he  was  allowed 
to  go  at  large  ?    But  whether  he  could  or  not,  it  is  clear  that  the 
proper  meaning  and  interpretation  of  the  language  was  a  ques- 
tion for  the  jury,  and  not  a  matter  of  law  for  the  court.    Besides, 
the  evidence  shows  that  the  prisoner  was  permitted  to  go  at 
large  before  the  conversation  took  place,  and  if  so,  the  subsequent 
assent  of  the  plaintiff's  attorney  to  his  being  and  remaining  at 
large,  even  if  it  had  been  expressly  given,  would  not  release  the 
defendant  from  his  liability  to  the  plaintiffs  in  this  action :  Scott 
V.  Seller,  5  Watts  235.    But  the  testimony  as  to  the  conversation 
was  no  part  of  the  plaintiff's  case,  and  it  was  improperly  ad- 
mitted in  evidence  on  the  cross-examination  of  the  plaintiff's 
witness.      The   rule   is   well   settled   that   the   cross-examination 
should  be  confined  to  matters  in  regard  to  which  the  witness  has 
been  examined  in  chief,  and  to  such  questions  as  may  tend  to 
show  the  bias  and  interest  of  the  witness.^    To  permit  the  defend- 
1  For  the  English  and  the  Federal       ination,    see    Wigmore  's    Evidence, 
rules  on  the  scope  of  the  cross-exam-       sec.  1890. 


350  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

ant,  under  the  guise  of  a  cross-examination,  to  give  evidence  in 
chief  is  not  only  disorderly,  but  unfair  to  the  plaintiffs.  Here 
the  defendant  was  allowed,  on  the  cross-examination  of  the  plain- 
tiffs' witness,  to  give  evidence  upon  which  he  relied  to  defeat  the 
action,  before  the  plaintiffs  had  given  any  evidence  tending  to 
show  that  the  prisoner  had  been  permitted  to  escape  after  his 
arrest.  Doubtless  the  defendant  had  a  r%ht  to  ask  the  witness 
on  his  cross-examination  what  instructions  were  given  by  the 
plaintiffs'  attorney  at  the  time  the  writ  of  ca.  sa.  was  placed 
in  his  hands,  for  if  any  instructions  were  given,  they  were  part 
of  the  res  gesta.;  but  he  had  no  right  to  examine  him  in  regard 
to  conversations  which  he  had  with  the  plaintiffs'  attorney  after 
the  debtor's  arrest  under  the  ca.  sa.,  for  they  were  no  part  of 
the  matters  in  regard  to  which  he  was  examined  in  chief.  But 
whether  they  were  proper  subjects  of  cross-examination  or  not, 
the  judgment  of  non-suit  was  clearly  erroneous. 

Judgment  reversed  and  a  procedendo  awarded. 


DAVIS  V.  HARDY. 

6  Barnwall  &  Cresswell,  225.     [1827.] 

This  was  an  action  against  the  defendant  for  maliciously,  and 
without  any  reasonable  or  probable  cause,  indicting  the  plaintiff 
for  embezzlement  at  the  July  sessions  for  the  county  of  Somerset, 
1825.  Plea,  not  guilty.  *  *  *  [The  evidence  of  one  Stainer, 
introduced  by  the  defendant,  was  relied  on  to  show  probable 
cause.] 

The  counsel  for  the  plaintiff  then  insisted  that  it  ought  to  be 
left  to  the  jury  to  find  whether  they  believed  Stainer 's  evidence. 
The  learned  judge  said  that  there  was  no  contradictory  evidence 
as  to  the  fact  of  Davis  having  desired  Stainer  to  conceal  from 
Hardy  that  the  chaise  hire  had  not  been  paid,  and  he  refused  to 
leave  any  question  to  the  jury,  and  nonsuited  the  plaintiff.  A 
rule  nisi  for  setting  aside  the  nonsuit  had  been  obtained  in  last 
Easter  term,  upon  the  ground  that  it  ought  to  have  been  left  to 
the  jury  to  decide  whether  they  believed  Stainer 's  evidence 
or  not. 

Abbott,  C.  J.  I  think  that  the  nonsuit  in  this  case  was  proper 
and  that  the  rule  for  setting  it  aside  must  be  discharged.    The 


Sec.  4.]  davis  v.  haedt.  "  351 

question  for  our  consideration  is  not  whether  Davis  was  guilty  of 
the  charge  preferred  against  hira,  nor  whether  the  indictment  was 
preferred  from  an  improper  motive ;  but  the  question  is,  whether 
Hardy,  the  prosecutor,  had  a  reasonable  or  probable  cause  for 
preferring  the  charge  against  Davis,  and  I  am  of  opinion,  upon 
the  evidence  given  at  the  trial,  that  there  was  probable  cause  for 
his  making  that  charge.  The  facts  are  these:  Davis  hired  the 
chaise  in  the  name  of  Hardy  and  received  from  the  assignee  of 
the  bankrupt  the  amount  of  the  chaise  hire ;  he  did  not  pay  it 
to  the  innkeeper  who  let  the  chaise,  nor  to  Hardy,  in  whose  name 
it  was  hired,  nor  did  he  ever  mention  to  the  latter  that  he  had 
received  the  amount.  Upon  a  charge  being  preferred  against 
him,  he  was  examined  before  the  magistrates,  and  one  of  the 
magistrates  was  called  as  a  witness  on  the  part  of  the  plaintiff, 
and  proved  that  he  admitted  most  of  the  facts  above  stated.  That 
being  the  case  upon  the  part  of  the  plaintiff,  the  learned  judge 
was  of  opinion  that  there  was  sufficient  prima  facie  evidence  of 
the  want  of  probable  cause  for  preferring  the  indictment,  and 
he  refused  to  nonsuit  the  plaintiff.  Stainer,  the  innkeeper,  who 
was  the  proprietor  of  the  chaise,  was  then  called  as  a  witness 
on  the  part  of  the  defendant.  He  proved  that  the  chaise  hire  was 
not  paid  to  him ;  that  he  applied  to  Davis  twice  for  it,  and  that 
upon  his  threatening  that  unless  he  was  paid  he  would  tell  Mr. 
Hardy,  Davis  requested  him  not  to  tell  Mr.  Hardy  that  it  was 
not  paid,  as  it  would  do  him  a  great  injury.  Now,  if  that  fact, 
which  was  proved  by  Stainer,  had  been  proved  in  the  course  of 
the  plaintiff's  case,  there  can  be  no  doubt  that  it  would  have  been 
evidence  of  a  probable  cause  for  preferring  the  charge;  but  it 
is  said  that  it  ought  to  have  been  submitted  to  the  jury  as  a  ques- 
tion of  fact,  whether  Davis  ever  did  request  Stainer  not  to  inform 
Hardy  that  he,  Davis,  had  received  the  money.  But  where  a 
witness  is  unimpeached  in  his  general  character,  and  uncon- 
tradicted by  testimony  on  the  other  side,  and  there  is  no  want 
of  probability  in  the  facts  which  he  relates,  I  think  that  a  judge 
is  not  bound  to  leave  his  credit  to  the  jury,  but  to  consider  the 
facts  he  states  as  proved,  and  to  act  upon  them  accordingly.  I 
think,  therefore,  that  the  judge  was  well  warranted  in  coming 
to  the  conclusion  in  this  case,  that  there  was  a  probable  cause  for 
preferring  the  indictment,  and  this  rule  must  therefore  be  dis- 
charged. 

Bayley,  J.     I  think  that  in  this  case  there  was  sufficient  evi- 


352  CONDUCT   OF   THE   TRIAL,  [ChAP.  IV. 

dence  of  probable  cause,  and  such  evidence,  too,  as  a  jury  ought 
to  be  directed  to  proceed  upon.  If  there  is  nothing  in  the 
demeanor  of  a  witness,  or  in  the  story  he  tells,  to  impeach  his 
credit,  and  he  is  not  contradicted  by  testimony  on  the  other  side, 
it  is  not  a  case  for  a  jury  to  deliberate  upon.^  If  the  case  had 
been  submitted  to  the  jury,  and  they  had  disbelieved  this  witness, 
I  think  that  we  should  have  been  bound  to  send  the  case  down 
to  a  new  trial. 

Rule  discharged. 


MERCHANTS'  BANK  v.  HAVERHILL  IRON  WORKS. 

159  Massachusetts,  158.     [1893.] 

Morton,  J.  There  w^as  evidence  tending  to  show  that  the  note 
was  put  into  circulation  fraudulently  by  the  Potter-Lovell  Com- 
pany, which  received  it  from  the  defendants.  The  plaintiff  was 
bound  to  show,  therefore,  that  it  took  the  note  in  good  faith  and 
for  value  before  maturity.  Emerson  v.  Burns,  114  Mass.  348. 
Sullivan  v.  Langley,  120  Mass.  437.  The  president  and  cashier 
of  the  plaintiff  bank  testified  that  such  was  the  fact.  The  defend- 
ants introduced  no  testimony  to  contradict  those  officers,  but 
claimed  the  right  to  go  to  the  jury  on  the  question  whether  the 
plaintiff  took  the  note  for  value  and  without  notice  of  the  fraud. 
The  court,  however,  ruled,  as  matter  of  law,  that  the  plaintiff 
was  entitled  to  recover  and  directed  a  verdict  for  the  plaintiff. 
We  think  this  was  error.  The  jury  may  have  disbelieved  the 
president  and  cashier,  or  have  believed  them  only  in  part,  and 
may  have  been  satisfied  on  all  the  evidence  that  they  either  had 
notice  or  did  not  take  the  note  for  value  before  maturity.  They 
were  not  bound,  as  matter  of  law,  to  believe  the  president  and 
cashier,  though  their  testimony  was  uncontradicted.  Twombly 
V.  Monroe,  136  Mass.  464. 

There  was  nothing  in  the  charter  of  the  Potter-Lovell  Com- 
pany which  expressly  or  by  implication  forbade  the  company  to 
purchase  the  note  in  suit.  It  was  fairly  incident  to  the  conduct 
of  a  brokerage  business  that  it  should  at  times  purchase  or  dis- 

1  See  Koehler  v.  Adler,  78  N.  Y. 
287,  post  368, 


Sec.  4.]  pulbright  v.  perry  county.  353 

count  notes.  If,  therefore,  the  plaintiff's  president  was  bound 
to  know,  as  matter  of  law,  the  powers  conferred  upon  the  Potter- 
Lovell  Company  by  its  charter,  the  admission  of  his  statement 
that  he  did  not  know  them  could  have  done  the  defendants  no 
harm. 

Because  of  the  error  in  taking  the  case  from  the  jury  the 

Exceptions  are  sustained. 


FULBRIGHT  v.  PERRY  COUNTY. 

145  Missouri,  432.     [1898.] 

Burgess,  J.  This  is  a  suit  to  set  aside  the  will  of  John  F. 
Fulbright,  late  of  Perry  county,  Missouri.  The  suit  was  begun 
in  the  Circuit  Court  of  said  county,  but  by  agreement  of  all 
parties  the  venue  was  subsequently  changed  to  the  Circuit  Court 
of  Cape  Girardeau  county,  where  the  case  was  tried  at  the  August 
term,  1895. 

For  grounds  for  setting  aside  the  will  the  petition  alleges 
that  for  a  long  time  prior  thereto  and  at  the  time  the  said  sup- 
posed will  was  subscribed  by  the  said  John  Fulbright,  and  also 
at  the  time  the  same  was  published  and  declared  as  and  for  his 
last  will  and  testament,  the  said  John  Fulbright  was  not  of  sound 
and  disposing  mind,  but  on  the  contrary  was  of  unsound  mind, 
and  wholly  incapable  of  making  a  testamentary  disposition  of 
his  property.  The  petition  then  prays  that  the  probate  of  said 
supposed  will  may  be  revoked  and  set  aside,  and  that  said  instru- 
ment be  declared  inoperative  and  for  naught  held. 

The  answer  of  defendants  denies  that  the  testator  was  insane 
or  of  unsound  mind  at  the  time  of  the  execution  of  the  will  in 
contest,  and  alleges  that  he  was  of  sound  and  disposing  mind  at 
that  time.  That  he  died  on  the  fifth  day  of  October,  1894,  and 
that  his  will  was  duly  admitted  to  probate  by  the  Probate  Court 
of  the  county  of  Perry,  in  this  state,  on  the  fifteenth  day  of 
October,  1894,  and  prays  that  the  said  last  will  and  testament  be 
declared  and  established  as  the  last  will  and  testament  of  said 
John  Fulbright. 

A  trial  was  had  on  the  issues  thus  joined,  and  after  the  close 
of  all  the  evidence  the  jury,  in  pursuance  of  an  instruction  of  the 

H.  T.  p.— 23 


354  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

court,  returned  a  verdict  for  defendants.     Plaintiffs  appealed. 

*     *     * 

The  only  question  for  consideration  is  as  to  whether  or  not 
there  was  sufficient  evidence  of  the  insanity  of  the  testator,  and 
want  of  capacity  to  make  a  will,  to  take  the  case  to  the  jury. 

When  the  formal  execution  of  a  will  according  to  the  require- 
ments of  the  statute  is  shown,  as  was  done  in  this  case,  and  the 
subscribing  witnesses  testify  to  the  sanity  of  the  testator,  and 
he  is  of  proper  age  to  make  a  will,  a  prima  facie  case  in  favor  of 
the  proponents  of  the  will  is  made  out,  and  it  then  rests  upon 
the  contestants  to  overcome  this  prima  facie  case  by  substantial 
evidence.  Carl  v.  Gabel,  120  Mo.  283 ;  McFadin  v.  Catron,  138 
Mo.  197. 

In  Benoist  v,  Murrin  et  al.,  58  Mo.  307,  it  was  said;  "A  dis- 
posing mind  and  memory  may  be  said  to  be  one  which  is  capable 
of  presenting  to  the  testator  all  his  property,  and  all  the  persons 
who  come  reasonably  within  the  range  of  his  bounty,  and  if  a 
person  has  sufficient  understanding  and  intelligence  to  under- 
stand his  ordinary  business,  and  to  understand  what  disposition 
he  is  making  of  his  property,  then  he  has  sufficient  capacity  to 
make  a  will.  Harvey  v.  Sullens,  46  Mo.  147.  In  McClintock  v. 
Curd,  32  Mo.  411,  the  most  satisfactory  test  was  declared  to  be 
whether  the  mind  and  memory  of  the  testator  were  sufficiently 
sound  to  enable  him  to  know  and  understand  the  business  in 
which  he  was  engaged  at  the  time  he  executed  the  will.  The 
Supreme  Court  of  Vermont  in  the  case  of  Converse  v.  Converse, 
21  Vt.  168,  lays  down  the  doctrine  that  if  the  deceased  was,  at 
the  time,  capable  of  understanding  the  nature  of  the  business 
and  the  elements  of  the  will,  that  is,  the  nature  and  extent  of 
his  property  and  the  persons  to  whom  he  meant  to  convey  it, 
and  the  mode  of  distribution,  it  is  sufficient ;  and  in  Home  v. 
Home,  9  Ired.  99,  it  is  said,  it  is  sufficient  if  the  testator  knew 
what  he  was  doing  and  to  whom  he  was  giving  his  property. ' ' 

Measured  by  the  rule  thus  announced,  had  John  Fulbright 
mental  capacity  to  make  a  will  ?  Considering  the  testimony  most 
strongly  in  favor  of  the  contestants,  -the  claim  that  John  Ful- 
bright was  of  unsound  mind,  and  had  not  sufficient  capacity  to 
make  a  will  when  he  executed  the  instrument  in  controversy,  is 
based  upon  certain  peculiarities  and  eccentricities  heretofore 
stated,  and  others  of  a  similar  character,  and  these  are  not  enough 
to  satisfy  the  unprejudiced  mind  that  he  had  not  sufficient  mental 


Sec.  4.]  bass  v.  rublee,  355 

capacity  to  make  a  will.^  They  may  all  have  existed  and  still  be 
consistent  with  his  sanity  at  the  time  of  the  execution  of  the 
instrument. 

In  Chafin  Will  case,  32  Wis.  557,  it  was  held  that  mental 
peculiarities  and  eccentricities  of  character  and  conduct  of  the 
testator  very  much  like  those  of  the  testator  in  the  case  at  bar 
were  not  sufficient  evidence  of  testamentary  incapacity  to  in- 
validate the  will. 

If  there  was  any  substantial  evidence  that  the  testator  was  not 
of  disposing  mind  and  memory  as  hereinbefore  defined  at  the 
time  of  the  execution  of  the  will,  then  the  case  should  have  gone 
to  the  jury,  but  no  such  evidence  was  adduced.  Mere  peculi- 
arities and  eccentricities  of  character  of  the  testator  were  not 
inconsistent  with  his  sanity. 

Upon  the  other  hand,  it  was  shown  by  the  attesting  witnesses 
to  the  will  that  he  was  sane,  and  there  was  no  substantial  evidence 
to  the  contrary.  He  always  attended  to  his  own  business  affairs, 
and  from  all  that  appears  did  it  as  well  as  anybody  could  have 
done.  For  many  years  he  lived  the  life  of  a  recluse,  aloof  from 
his  relations  and  all  others,  and  it  is  not  strange  under  the 
circumstances  that  he  should  have  given  his  property  to  the 
county  in  which  he  had  lived  for  so  many  years.  There  was  no 
substantial  evidence,  we  think,  that  John  Fulbright  was  insane 
or  that  he  did  not  have  mental  capacity  sufficient  to  execute 
the  will.     *     *     * 


(b)   The  Motion  or  Request. 
BASS  V.  RUBLEE. 

76  Vermont,  395.     [1904.] 

Watson,  J.     The   declaration   is  special  assumpsit  in   three 
counts  severally  declaring  on  a  written  contract  dated  Febru- 

^  Opinion     evidence     fonnded     on  When    the    question    of    capacity 

mere   eccentricities   is   not   sufficient       goes  to  the  jviry,  the  pro[)onent  has 
to  take  the  ease  to  the  jury.     Winn       the  burden  of  satisfying  them  that 
V.   Grier,    217    Mo.    420.      See    also,       the  testator  had  sufficient  capacity. 
Martin   v.    Bawdern,    158    Mo.    379,       Norton  v.  Paxton,  110  Mo.  456. 
where  the  verdict  was  directed   for 
the   proponents   of   the   will   on   the 
issue  of  due  execution. 


356  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

ary  13,  1901,  sealed  and  subscribed  by  the  plaintiff  and  the 
defendant,  whereby  the  defendant  piomised  and  agreed  to  fur- 
nish to  the  plaintiff  in  the  cars  at  East  Berkshire,  in  the  month 
of  June,  1901,  certain  specified  lots  of  maple  lumber,  to  be  paid 
for  by  the  plaintiff  as  therein  stipulated.  It  is  further  alleged 
that  subsequently  the  parties  by  mutual  agreement  not  under 
seal  extended  the  time  for  the  delivery  of  the  lumber  without 
setting  a  time  limit  therefor,  and  that  in  pursuance  of  the  con- 
tract so  modified  as  to  time,  thereafter,  between  the  dates  in  the 
several  counts  alleged,  the  defendant  delivered  to  the  plaintiff  a 
portion  of  the  lumber  specified  in  the  agreement,  and  received 
payment  therefor.  Then  follow  allegations  of  the  defendant's 
breach  of  the  contract  in  neglecting  and  refusing,  though  re- 
quested, to  deliver  the  balance  of  the  lumber,  etc. 

At  the  close  of  plaintiff's  opening  evidence,  the  defendant 
moved  for  a  verdict  on  the  grounds  that  (1)  there  was  no  evi- 
dence of  any  agreement  between  the  parties  to  extend  the  terms 
of  the  contract  beyond  its  original  stipulation;  and  (2)  there 
was  no  evidence  of  such  an  extension  as  is  set  up  in  the  writ. 
The  motion  was  granted  pro  forma,  to  which  the  plaintiff  ex- 
cepted. 

The  record  shows  that  the  plaintiff  testified,  in  effect,  that  the 
defendant  could  not  get  the  lumber  out  in  June,  the  time  speci- 
fied in  the  original  contract ;  that  in  June  they  mutually  agreed 
that,  since  the  lumber  could  not  be  ready  to  ship  until  in  the 
fall,  the  time  should  be  extended  till  fall;  and  that  then  they 
would  survey  and  ship  the  lumber  when  it  was  ready.  The  subse- 
quent correspondence  between  the  parties  and  their  actions 
regarding  the  lumber  tended  to  show  the  same  thing.  Since 
there  was  evidence  to  go  to  the  jury  on  the  question  whether  the 
original  contract  was  modified  as  claimed  by  the  plaintiff,  it  was 
error  to  order  a  verdict. 

If  the  second  ground  stated  in  the  motion  could  be  considered 
as  covering  a  variance,  if  any  there  be,  between  the  time  for  the 
performance  of  the  modified  contract  as  alleged,  and  that  which 
the  evidence  tends  to  show,  we  do  not  so  consider  it,  for  it  appears 
from  the  record  that  it  was  not  treated  by  the  defendant  in  the 
court  below,  and  it  is  not  so  treated  in  his  brief  here. 

It  is  urged  by  the  plaintiff  that  if  it  was  error  to  direct  a  ver- 
dict, he  is  entitled  to  final  judgment  in  his  favor  in  this  court. 
Hereon  it  is  argued  that  the  motion  for  a  verdict  was  equivalent 


Sec.  4. 


BASS   V.    RUBLEE. 


357 


to  a  demurrer  to  the  evidence,  and  is  governed  by  the  same  rules, 
referring  to  Latremouille  v.  Bennington  &  Rutland  Ry.  Co.,  63 
Vt.  336,  22  Atl.  656.  There,  in  discussing  the  defendant's  motion 
for  a  verdict,  made  at  the  close  of  the  evidence,  it  is  said  that 
"such  a  motion  is  like  a  demurrer  to  the  whole  evidence,  on  the 
ground  of  its  insufficiency  to  warrant  a  verdict  for  the  plaintiff 
if  one  should  be  found. ^  The  motion  could  not  be  entertained, 
if,  as  the  case  stood,  there  was  any  evidence  tending  fairly  and 
reasonably  to  support  the  claim  of  the  plaintiff.  If  the  verdict 
was  to  be  determined  by  an  inference  to  be  made  by  the  jury 
from  facts,  any  of  which  w^ere  more  or  less  in  dispute,  the 
disputed  fact  or  facts  were  to  be  determined  and  the  inference 
made  by  the  jury.  So  long  as  any  fact  from  which  such  infer- 
ence is  to  be  made  is  in  doubt  or  dispute,  the  inference  is  depend- 


1  Scholfield,  J.,  in  Bartelott  v.  In- 
ternational Bank,  119  III.  259, 
"  *  *  *  First — Although  we  have 
said  that  motions  to  exclude  the  en- 
tire evidence  from  the  jury,  and 
motions  to  instruct  the  jury  to  find 
for  the  defendant,  are  in  the  nature 
of  demurrers  to  evidence,  yet  this 
relates  rather  to  the  mode  of  view- 
ing the  evidence,  than  to  the  time 
or  mode  of  interposing  such  motions. 
They  are  in  the  nature  of  demurrers 
to  evidence,  in  that  they  admit  not 
only  all  that  the  testimony  of  the 
plaintiff  proves,  but  also  all  that  it 
tends  to  prove.  (Frazer  v.  Howe, 
et  al.,  106  111.  573.)  But  none  of 
the  technical  particularity  is  re- 
quired in  making  such  motions,  that 
is  required  in  demurrers  to  evidence, 
and  no  judgment  is  rendered  against 
the  defendant  on  disallowing  the  mo- 
tion. They  are  usually  informal, 
and  most  frequently  made  by  simply 
presenting  to  the  Court  an  instruc- 
tion, to  be  given  or  refused,  instruct- 
ing the  jury  that  the  evidence  is  ex- 
cluded, or  that  they  should  find  for 
the  defendant,  or,  it  may  be,  both. 
It  would  certainly  be  proper,  and, 
where  the  motion  can  rightly  be  sus- 
tained, most  convenient,  to  present 


the  motion  at  the  conclusion  of  the 
plaintiff 's  evidence,  so  as  to  at  once 
terminate  the  trial;  but  we  know  of 
no  reason  or  authority  why  it  may 
not  be  made  after  evidence  is  heard 
on  behalf  of  the  defendant.  At 
most,  so  far  as  is  now  perceived,  de- 
laying the  motion  until  after  the 
iutroduction  of  defendant 's  evidence 
could  only  affect  the  question  of 
costs  incident  to  the  examination  of 
the  defendant 's  witnesses, — and 
this,  obviously,  would  appeal  only  to 
the  discretion  of  the  Court,  on  a  mo- 
tion to  re-tax  costs,  as,  in  case  of 
the  examination  of  unnecessary  wit- 
iiesses.  In  the  following  cases  the 
practice  seems  to  have  been  to  en- 
tertain the  motion  after  hearing  the 
evidence  of  the  defendant.  Eeed 
V.  Inhabitants,  8  Allen,  524;  Im- 
provement and  Kailroad  Co.  v.  Mun- 
son,  14  Wall.  342 ;  Eandall  v.  Balti- 
more and  Ohio  Eailroad  Co.,  109  U. 
S.  478;  Herbert  v.  Butler,  97  id. 
318.  And  that  practice  is  recom- 
mended by  this  Court  in  City  of 
Mattoon  v.  Fallin,  113  111.  249." 

And  so  in  Eberstadt  v.  State,  92 
Tex.  94.  See  also,  Baylis  v.  Ins.  Co., 
113  U.  S.  316. 


358  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

ent  partly  upon  the  fact  to  be  determined  by  the  jury.     It  is  not 
wholly  a  question  of  law. 

A  motion  for  a  verdict  is  considered  in  law  as  in  the  nature 
of  a  demurrer  to  the  evidence,  and,  to  the  extent  in  the  Latre- 
mouille  case  indicated,  that  is,  to  the  mode  of  viewing  the  evi- 
dence, it  is  governed  by  the  same  rules.  But  the  required  tech- 
nicalities of  the  demurrer  and  the  procedure  incident  thereto 
have  no  place  when  the  court  is  moved  to  direct  a  verdict.  The 
province  of  the  court  on  such  a  motion  is  not  to  weigh  the  evi- 
dence and  ascertain  where  the  preponderance  is,  but  it  is  limited 
strictly  to  determining  whether  there  is,  or  is  not,  evidence  from 
which,  if  believed,  it  may  reasonably  be  inferred,  in  legal  con- 
templation, that  the  fact  affirmed  exists,  excluding  the  effect  of 
all  modifying  or  countervailing  evidence ;  and  on  overruling  the 
motion  no  judgment  is  rendered  against  the  moving  party. 
Bartelott  v.  International  Bank,  119  111.  259. 

In  the  case  before  us  a  modification  of  the  original  contract  is 
essential  to  be  shown  to  the  maintenance  of  the  action.  The  evi- 
dence bearing  on  that  question  consists  of  oral  testimony,  cor- 
respondence between  the  parties,  and  their  actions  covering  a 
period  of  six  months  or  more  of  time,  together  with  inferences 
to  be  drawn  from  the  circumstances  disclosed  by  the  evidence.  A 
jury  trial  is  most  appropriate  for  the  settlement  of  the  facts 
involved,  and  the  defendant  should  not  be  deprived  of  an  oppor- 
tunity therefor.  While  it  is  a  long  established  rule  of  practice 
in  cases  brought  into  this  court  upon  exceptions  to  finally  dispose 
of  the  case  here,  it  is  a  part  of  the  same  rule  that,  when  a  jury 
trial  becomes  necessary,  or  if  the  decision  of  this  court  places 
the  case  in  such  a  state  that  either  party  has  a  right  to  a  trial 
by  jury,  the  cause  will  be  remanded.  Peach  v.  Mills,  13  Vt.  501 ; 
Porter  v.  Smith,  20  Vt.  344. 

Nor  could  the  result  be  different  were  the  defendant's  motion 
treated  as  a  demurrer  to  the  evidence,  and  determined  by  the 
law  governing  under  that  practice;  for  some  of  the  technical 
requirements  were  not  complied  with.  The  object  of  such  pro- 
ceedings is  not  to  bring  before  the  court  an  investigation  of  facts 
in  dispute,  nor  to  consider  and  weigh  the  force  of  testimony,  and 
the  presumptions  and  inferences  arising  from  the  evidence.  The 
only  purpose  of  such  a  demurrer  is  to  refer  to  the  courts  ques- 
tions of  law  arising  from  the  facts  ascertained.  Where  the  parol 
evidence  is  loose  and  indeterminate,  which  may  be  urged  with 


Sec.  4. J  w.  Chicago  st.  by.  co.  v.  poster.  359 

more  or  less  effect  to  a  jury ;  or  if  the  evidence  is  of  circumstances, 
and  is  meant  to  operate  beyond  the  proof  of  the  existence  of 
those  circumstances,  and  to  conduce  to  the  proof  of  the  existence 
of  other  facts — the  defendant  cannot  demur  to  the  evidence  and 
insist  on  the  jury's  being  discharged  from  giving  a  verdict,  and 
oblige  the  the  plaintiff  to  join  in  the  demurrer,  without  distinctly 
admitting  upon  the  record  every  fact  and  every  conclusion  which 
the  plaintiff' 's  evidence  conduced  to  prove.  This  was  not  done. 
When  the  facts  are  not  thus  admitted  upon  the  record,  and  there 
has  been  a  voluntary  joinder  in  demurrer,  leaving  the  facts  un- 
settled and  indeterminate,  it  is  deemed  a  sufficient  reason  for 
refusing  judgment  on  the  demurrer.  Furthermore,  there  is  no 
joinder  of  demurrer  on  the  record,  without  which  no  final  judg- 
ment can  properly  be  rendered.  With  the  case  standing  in  this 
way,  it  is  the  settled  practice  to  award  a  new  trial  on  the  ground 
that  the  issue  between  the  parties,  in  effect,  has  not  been  tried. 
2  Tidd's  Pr.  (3  Am.  ed.)  865-866;  Gibson  v.  Hunter,  2  H.  Black. 
187 ;  Fowle  V.  The  Common  Council  of  Alexandria,  11  Wheat. 
320,  6  L.  ed.  484 ;  Crowe  v.  People,  92  111.  231. 

The  pro  forma  judgment  is  reversed  and  cause  remanded. 


WEST  CHICAGO  STREET  RY.  CO.  v.  FOSTER. 

175  Illinois,  396.     [1898.] 

Mr.  Justice  Phillips  delivered  the  opinion  of  the  court. 

Error  is  assigned  by  appellant  on  the  refusal  of  the  trial  court 
to  allow  its  motion,!  made  at  the  close  of  plaintiff's  evidence,  to 
take  the  case  from  the  jury,  which  motion  was  renewed  at  the 

1  In  Ames  v.  Straeliurski,  145  111.  Foley  v.  Ey.,  64  la.  644;  Ey.  v. 
192,  the  following  form  of  request  Eooney,  186  Fed.  16.  In  a  number 
was  approved :  ' '  Now  come  the  de-  of  the  states  a  formal  motion  is  not 
fendants,  by  their  attorneys,  and  re-  used.  In  many  jurisdictions  it  is 
quest  the  Court  to  instruct  the  jury  not  necessary  to  specify  the  particu- 
that  the  evidence  is  insufficient  to  lar  defect  in  the  proof.  Wallner  v. 
maintain  the  plaintiff's  case,  as  Chicago  Traction  Co.,  245  111.  148, 
charged  in  the  declaration,  and  ante,  p.  344.  In  others  the  motion  to 
therefore  the  verdict  must  be  for  the  direct  a  non-suit  or  verdict  is  re- 
defendants.  ' '  quired  to  state  the  particular  ground, 

The  motion  need  not  be  in  writ-  and  nice  distinctions  are  drawn  be- 
ing.     Swift   v.   Fue,    167    111.    443;  tween    grounds    and    reasons.      See 


360 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


close  of  all  the  evidence.  The  record  discloses  that  the  motions 
were  made  as  alleged,  but  neither  of  them  was  accompanied  by 
an  instruction.  Such  condition  of  the  record  presents  no  legal 
question  for  review  in  this  court  as  to  the  refusal  of  the  trial 
court  to  grant  such  motion.  Where  a  motion  is  made 
at  the  close  of  plaintiff's  evidence  to  take  a  case  from 
the  jury  and  direct  a  verdict  for  the  defendant,  and  is  re- 
newed at  the  close  of  all  the  evidence,  a  written  instruction  2 


Bassett  v.  Mayor,  118  Md.  114  (that 
under  the  pleadings  and  evidence 
plaintiff  was  not  entitled  to  recover 
is  too  general)  ;  Gerding  v.  Haskin, 
141  N.  Y.  514  (general  request  suffi- 
cient if  defect  could  not  have  been 
obviated). 

Straup,  J.,  in  Smalley  v.  Ey.,  34 
Utah,  423:  "A  mere  general  state- 
ment that,  under  the  evidence,  the 
plaintiff  is  not  entitled  to  recover, 
or  that  the  defendant  is  entitled  to 
a  verdict,  or  that  the  plaintiff  has 
not  made  a  sufficient  case  to  go  to 
the  jury,  does  not  point  to  anything. 
If,  however,  in  a  case  of  negligence 
a  specification  is  made  that  the  evi- 
dence is  insufficient  to  show  negli- 
gence on  the  part  of  the  defendant, 
or  that  under  the  evidence  the  plain- 
tiff is  conclusively  shown  to  be  guilty 
of  contributory  negligence,  or  that 
he  assumed  the  risk,  etc.,  such  a 
specification  is  ordinarily  sufficient. 
If  a  verdict  is  directed  on  the 
ground  that  the  evidence  is  insuf- 
ficient to  show  negligence  on  the 
part  of  the  defendant,  it  sufficiently 
is  made  to  appear  on  what  question 
of  law  the  case  was  taken  from  the 
jury.  The  making  of  such  a  speci- 
fication ordinarily  points  out  the  de- 
fect within  the  meaning  of  the  ad- 
judicated cases. ' ' 

Per  Curiam,  in  Palmer  v.  Marys- 
ville  Democrat,  90  Cal.  168:  "This 
is  an  action  to  recover  possession  of 
a  certain  printing-press  delivered  by 
plaintiffs'  assignors  to  one  Mc- 
Whorter,   under   a   contract   similar 


in  terms  to  that  which  was  under 
consideration  in  the  case  of  Palmer 
V.  Howard,  72  Cal.  293;  1  Ajn.  St. 
Eep.  60. 

When  the  plaintiffs  rested  at  the 
trial,  the  defendant  moved  the  court 
for  a  nonsuit,  upon  several  grounds. 
The  motion  was  granted,  and  the 
only  question  for  consideration  is, 
whether  the  court  erred  in  its  ruling. 

McWhorter  sold  the  property  to 
Holland  &  Crane,  and  they  had  full 
notice  of  the  terms  and  conditions 
under  which  the  former  had  secured 
possession  of  it. 

The  agreement  of  June  27,  1887, 
was  binding  not  only  upon  Mc- 
Whorter, but  upon  subsequent  pur- 
chasers with  notice  of  the  conditions 
under  which  McWhorter  took  and 
held  the  property. 

Assuming  that  the  plaintiffs  were 
required  to  prove  that  the  defendant 
took  the  property  with  notice  of  the 
facts,  the  grounds  of  the  motion  for 
a  nonsuit  do  not  specify  a  failure 
to  prove  such  notice;  and  under  the 
rule  well  established  here,  a  non- 
suit cannot  be  granted,  unless  the 
ground  upon  which  it  is  supported 
was  called  to  the  attention  of  the 
court  and  the  plaintiffs  at  the  time 
the  motion  was  made.  None  of  the 
grounds  stated  in  the  statement  on 
motion  for  a  non  suit  is  well  taken. 

Judgment  and  order  reversed,  and 
cause  remanded  for  a  new  trial. 

2  See  HI.  E.  S.  1913,  Chap.  110, 
§73. 


Sec.  4.]  bogk  v.  gassert.  361 

directing  such  verdict  must  be  presented  with  the  motion.  When 
a  written  instruction  is  not  so  presented  and  error  is  assigned 
on  the  refusal  of  the  court  to  give  the  instruction,  this  court  has 
not  before  it  any  legal  question  for  determination.  (Calumet 
Electric  Street  Railway  Co.  v.  Christenson,  170  111.  383 ;  Swift  & 
Co.  V.  Fue,  167  id.  443 ;  Wenona  Coal  Co.  v.  Holmquist,  152  id. 
581.)  In  this  case  defendant  offered  a  general  instruction  with 
its  series  directing  the  jury  to  find  for  the  defendant,  but  that 
was  not  sufficient  to  bring  it  within  the  rule  above  stated.  Its 
right  to  assign  error  upon  the  refusal  to  give  such  instruction  at 
that  time  was  waived  by  offering  it  with  other  instructions.^ 
(Pierce  v.  Walters,  164  111.  560;  West  Chicago  Street  Railroad 
Co.  V.  Yund,  169  id.  47 ;  Gilbert  v.  Watts-DeGolyer  Co.  id.  129 ; 
Chicago  and  Northwestern  Railway  Co.  v.  Delaney,  id.  581.) 
The  motion,  therefore,  to  take  the  case  from  the  jury  not  being 
accompanied  by  an  instruction  so  directing  the  jury,  no  discus- 
sion of  the  facts  in  the  case  is  necessary.     *     *     * 


BOGK  v.  GASSERT. 

149  U.  S.  17.     [1893.] 

Mr.    Justice   Brown,    after  stating   the   case,    delivered   the 
opinion  of  the  court. 

The  action  in  this  case  was  upon  the  lease  of  a  city  lot  and 

3  Lamm,   J.,   in   Kenefick   v.    Fire  other.     But  the  practice  is  for  both 

Ins.  Co.,  205  Mo.  294:     "But  if  in  sides  to  hand  their  instructions  uj) 

either  of  those  cases  that  court  in-  to  the  judge  at  one   and  the   same 

tended   to   say  that  the   bill   of   ex-  time.      Many    trial    judges    require 

oeptions   should    show   the   order   in  this   to   be   done   so   that   the   court 

which  instructions  were  asked  or  re-  may   have   them   all   under   his   eye, 

fused,   and   that   there   is   vital   sig-  may  consider  them  by  and  large  and 

nificance  in  such  punctilio,  then  such  pick  and  choose  as  his  judicial  acu- 

ruling  is  of  doubtful  utility  in  ar-  men  may  fortify  his  sense  of  justice 

riving  at  ultimate  justice.     In  strict  and  prompt  his  action.     We  can  see 

logical  order,  if  defendant  contends  nothing    material    or    vital    in    the 

there  is  no  case  to  go  to  the  jury,  mere  order  in  which  the  instructions 

he  should  hand  up  his  instruction  in  are    asked    or    passed    upon.      They 

the  nature  of  a  demurrer  first  and  look   alike   whether   viewed    from    a 

at   once   at   the    close    of   the    case,  down  to  izzard,  or,  vice  versa,  from 

because,  if  that  instruction  be  given  izzard  up  to  a. " 
there  is  no  use  of  considering  any 


362 


CONDUCT   OF   THE   TRIAL. 


[Chap.  IV. 


certain  mining  claims,  and  a  judgment  was  demanded  for  the 
restitution  of  the  premises,  and  for  damages  for  detention.  The 
answer  set  forth  in  substance  that  the  lease  was  one  of  a  series 
of  contemporaneous  agreements,  consisting  of  two  deeds,  an 
agreement  to  reconvey  and  a  lease ;  that  the  deeds  were  intended 
as  a  mortgage,  and  that  the  rental  of  $450  named  in  the  lease 
was  the  amount  which  it  was  understood  would  be  necessary  to 
pay  the  taxes  upon  the  property,  and  the  annual  assessment 
work  upon  the  mining  claims,  and  that  upon  payment  thereof  by 
defendant  Bogk  the  object  of  the  lease  should  be  fully  satisfied 
and  discharged;  that  the  defendant  paid  this  sum,  and  that  the 
said  lease  became  void  and  of  no  binding  force. 

The  trial  took  place  before  a  jury,  and  the  assignment  of 
error  relates  to  the  rulings  of  the  court  made  in  the  course  of 
such  trial.    We  proceed  to  consider  them  in  their  order. 

1.  That  the  court  erred  in  overruling  defendant's  motion  for 
a  nonsuit.  In  this  connection  the  bill  of  exceptions  shows  that 
the  plaintiffs  put  in  evidence  the  deeds  from  Bogk  and  wife  to 
the  plaintiffs,  the  agreement  to  reconvey  the  lease,  with  oral 
testimony  of  the  rental  value,  and  then  rested.  Defendant  there- 
upon moved  for  a  nonsuit  upon  the  ground  that  plaintiffs  had 
failed  to  prove  that  they  were  ever  at  any  time  in  or  entitled  to 
the  possession  of  the  premises;  that  defendant  ever  entered  into 
possession  under  or  by  virtue  of  said  lease;  and  that  plaintiffs 
totally  failed  to  prove  a  demand  to  have  been  made  for  the 
possession  of  the  premises,  or  ever  served  or  gave  notice  to  quit 
upon  the  defendant.  This  motion  was  overruled.  Defendant 
excepted  and  proceeded  to  introduce  testimony  in  defense. 

The  practice  in  Montana  (Comp.  Stat.,  §242)  permits  a 
judgment  of  nonsuit  to  be  entered  "by  the  court,  upon  motion 
of  the  defendant,  when,  upon  the  trial,  the  plaintiff  fails  to 
prove  a  sufficient  case  for  the  jury."  Without  going  into  the 
question  whether  the  motion  was  properly  made  in  this  case,  it 
jis  sufficient  to  say  that  defendant  waived  it  by  putting  in  his 
testimony. 1    A  defendant  has  an  undoubted  right  to  stand  upon 


1  In  a  number  of  the  states  error 
in  refusing  to  direct  a  verdict  at  the 
close  of  the  plaintiff's  case  is  not 
waived  by  putting  in  evidence  for 
the  defense,  but  the  defendant  takes 
the  chance  of  curing  the  defect. 
McPherson  v.  Ry.,  97  Mo.  253. 


As  to  the  discretion  of  the  Court 
in  ruling  on  the  motion  before  the 
close  of  all  the  evidence,  see  Sowell 
V.  Champion,  ante,  332. 


Sec.  4.]  kenefick  v.  Norwich  ins.  co.  363 

his  motion  for  a  nonsuit,  and  have  his  writ  of  error  if  it  be 
refused;  but  he  has  no  right  to  insist  upon  his  exception  after 
having  subsequently  put  in  his  testimony  and  made  his  case 
upon  the  merits,  since  the  court  and  jury  have  the  right  to  con- 
sider the  whole  case  as  made  by  the  testimony.  It  not  infre- 
quently happens  that  the  defendant  himself,  by  his  own  evidence, 
supplies  the  missing  link,  and,  if  not,  he  may  move  to  take  the 
case  from  the  jury  upon  the  conclusion  of  the  entire  testimony. 
Grand  Trunk  Railway  v.  Cummings,  106  U.  S.  700;  Accident 
Insurance  Co.  v.  Crandal,  120  U.  S.  527 ;  Northern  Pacific  Rail- 
road V.  Mares,  123  U.  S.  710 ;  Union  Insurance  Co.  v.  Smith,  124 
U.  S.  405,  425;  Bradley  v.  Poole,  98  Mass.  169;  Columbia  & 
Puget  Sound  Railroad  v.  Hawthorne,  144  U.  S.  202.     *     *     * 


KENEFICK  V.  NORWICH  INS.  CO. 
205  Missouri,  294.     [1907.] 

Lamm,  J.  In  the  St.  Louis  Court  of  Appeals,  Bland,  P.  J., 
wrote,  and,  with  the  concurrence  of  his  learned  brethren  on  that 
bench,  there  was  handed  down  in  this  case  the  following  opinion 
(119  Mo.  App.  308).     *     *     * 

"3.  Plaintiffs  further  contend  that  the  case  was  tried  upon  a 
theory  adopted  by  the  defendant  and  it  is  thereby  estopped  to 
raise  an  objection  to  the  action  of  the  court  in  overruling  its 
demurrer  to  the  evidence  and  submitting  the  issues  to  the  jury. 
It  is  a  well  settled  rule  of  practice  in  this  state  that  where  parties 
try  a  cause  upon  a  certain  theory,  neither  party  can  have  the 
case  considered  on  another  and  different  theory  in  the  Appellate 
Court.  [Mirrielees  v.  Railroad,  163  Mo.  1,  c.  486,  and  cases 
cited.]  But  where,  as  was  done  in  this  case,  the  defendant,  at  the 
close  of  all  the  evidence,  offers  a  demurrer  to  the  evidence  as  a 
whole,  which  the  court  refused  to  grant,  and  he  saves  his  excep- 
tions to  the  rulings  of  the  court,  the  Appellate  Court  is  required 
to  review  all  the  evidence  heard  on  the  trial  and  determine  for 
itself  whether  or  not  there  is  substantial  evidence  in  support  of 
the  verdict.  [McPherson  v.  Railroad,  97  Mo.  253;  Weber  v. 
Railroad,  100  Mo.  194 ;  Hilz  v.  Railroad,  101  Mo.  36 ;  Jennings 


364  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

V.  Railroad,  112  Mo.  268;  Kerr  v.  Cusenbary,  60  Mo.  App.  1. 
c.  560 ;  Flinn  v.  Bldg.  Assn.,  93  Mo.  App.  444.]  "     *     *     * 

I.  The  proposition  in  the  third  paragraph  is  to  the  effect  that 
where  a  defendant  challenges  plaintiff's  theory  of  the  sufficiency 
of  all  the  evidence  to  make  a  case  for  plaintiff  by  submitting  an 
instruction  in  the  nature  of  a  demurrer  to  the  evidence  at  the 
close  of  the  case,  such  defendant  does  not  estop  himself  or 
waive  his  right  on  appeal  to  pursue  his  exception  to  the  court's 
ruling  on  such  demurrer  by  asking  and  receiving  instructions 
the  converse  of  those  given  for  plaintiff.  Is  that  proposition 
good  law  ?    Eminently  so,  because : 

(a)  In  construing  rules  of  appellate  practice  in  accordance 
with  right  reason  regard  must  be  had  to  the  difference  between 
the  position  occupied  by  a  defendant  and  that  occupied  by  a 
plaintiff.  The  plaintiff  goes  into  court  voluntarily;  the  defend- 
ant is  "lugged"  in,  that  is,  pulled  in  by  the  lugs,  will  ye,  nill  ye. 
The  plaintiff  goes  up  to  battle  on  his  own  ground — he  pitches 
the  field.  The  defendant  by  a  plea  in  avoidance  may  undertake 
to  flank  plaintiff's  position  and  select  another  battlefield.  The 
trial  court  may  parry  the  flanking  operation  and  force  defendant 
to  join  battle  on  the  position  taken  by  plaintiff.  Having  been 
thus  coerced  and  having  yielded,  as  he  was  in  duty  bound  to 
yield  (and  because  he  could  not  help  himself)  how  can  it  be 
said  that,  because  he  made  the  very  best  of  a  bad  bargain  and 
tried  "to  pluck  the  flower,  safety,  from  the  nettle,  danger,"  he 
lost  his  right  to  complain  of  the  court 's  ruling  in  coercing  him  ? 

But  the  reason  of  the  rule  ought  not  to  permit  its  application 
to  a  case  where  the  losing  party,  as  here,  does  not  invite  the 
error,  but  yields  under  protest  to  the  theory  of  the  trial  court, 
and  thereafter  tries,  as  best  he  may,  to  ameliorate  his  plight  by 
administering  an  antidote  to  the  poison  already  injected  in  the 
case,  to  see  if,  peradventure,  he  may  not  be  able  to  render  it 
innocuous. 

The  reasoning  of  the  cases  cited  by  Bland,  P.  J.,  in  paragraph 
three  is  in  accord  with  that  of  the  foregoing  cases  and  sustains 
the  proposition  in  that  paragraph. 

Indeed,  it  was  a  favorite  notion  of  writers  on  sprightlier 
themes  than  the  law,  commencing,  maybe,  with  Aristophanes  and 
coming  on  down  through  a  line  of  wits,  including  Butler,  Scar- 
ron,  and  Goldsmith,  that: 


Jl 


Sec.  4.]  kenefick  v.  Norwich  ins.  co.  365 

' '  For  he  who  fights  and  runs  away, 
May  live  to  fight  another  day ; 
But  he  who  is  in  battle  slain, 
Can  never  rise  and  fight  again. ' ' 

Transmitting  that  notion  into  allowable  law  phrase,  it  might 
read  thus :  He  who  fights  and  runs  away  from  a  position  taken 
on  his  answer  and  at  the  trial,  because  driven  away  by  the  court, 
may  live  to  fight  another  day  on  appeal  in  the  same  position,  if 
he  marked  the  spot  by  an  exception ;  but  he  who  is  in  battle 
slain,  that  is,  who  selects  his  place  voluntarily,  and  who  legally 
(speaking  in  figure)  dies  in  his  tracks  on  his  selected  theory,  can 
fight  no  more  on  appeal,  because:  (as  once  a  mortgage,  always  a 
mortgage,  so)  once  fairly  dead,  always  dead. 

(b)  The  rule  respondent  invokes  is  the  sensible  commonplace 
of  the  law  that  a  case  must  be  heard  on  appeal  on  the  same  theory 
it  was  tried  below.  That  rule  is  constantly  applied  in  many 
ways.  But  care  must  be  exercised  to  put  one's  finger  on  the 
theory  upon  which  the  case  was  tried.  What  if  there  be  two 
theories.  May  one  be  taken  and  the  other  left?  If  a  plaintiff 
and  defendant  jointly  select  a  theory  and  try  their  case  on  that 
theory,  neither  may  stray  from  it  on  appeal.  If  either  litigant 
tole  the  court  into  error,  the  one  to  blame  may  not  complain. 
So,  if  plaintiff  and  defendant  jointly  tole  the  trial  court  into 
error,  neither  may  complain  of  that  error  on  appeal.  But  it  must 
not  be  forgotten  that  a  defendant,  in  his  defense,  may  have  a 
quiver  full  of  arrows,  may  be  allowed  more  than  one  theory — 
may  have  two  strings  to  his  bow  withal.  For  instance,  his  first 
theory  may  be  that  he  is  not  liable  as  a  matter  of  law  on  all  the 
facts.  His  next  theory  may  be  that  it  is  a  question  of  fact  to  be 
put  to  the  jury  whether,  under  the  evidence,  he  is  liable  on  the 
issues  put  to  them  on  plaintiff's  theory  of  the  case.  Precisely  so 
is  the  record  in  this  case.  By  answer,  by  its  course  at  the  trial 
and  by  the  mandatory  instruction  asked  and  refused,  defendant 
insisted  it  was  not  liable  on  the  facts  as  a  matter  of  law.  The 
trial  court  refused  to  go  hand  in  hand  with  defendant  on  that 
theory;  and  defendant,  adjusting  itself  to  the  court's  theory,  is 
not  now  estopped  to  reassert  its  first  theory  and  waived  none  of 
its  legal  rights  on  appeal. 


366  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

BEUTTELL  v.  MAGONE. 

157  V.  S.  154.     [1895.] 

Mr.  Justice  White,  after  stating  the  ease,^  delivered  the 
opinion  of  the  court. 

The  contention  is  advanced  that  as  each  party  below  requested 
the  court  to  instruct  the  jury  to  return  a  verdict  in  his  favor,  this 
M'as  equivalent  to  a  stipulation  waiving  a  jury  and  submitting 
the  case  to  decision  of  the  court.  From  this  premise  two  con- 
clusions are  deduced;  first,  that,  there  being  no  written  stipula- 
tion, the  decision  below  cannot  be  reviewed  upon  writ  of  error ;  ^ 
second,  that,  even  if  the  request  in  open  court,  made  by  both 
parties,  be  treated  as  a  written  stipulation,  the  correctness  of 
the  decision  below  cannot  be  examined,  because  it  is  in  the  form 
of  a  general  finding  on  the  whole  case,  and  findings  of  the  court 
upon  the  evidence  are  reviewable  only  when  they  are  special. 

The  request,  made  to  the  court  by  each  party,  to  instruct  the 
jury  to  render  a  verdict  in  his  favor,  was  not  equivalent  to  a 
submission  of  the  case  to  the  court,  without  the  intervention  of 
a  jury,  within  the  intendment  of  Rev.  Stat.,  sections  649,  700. 
As,  however,  both  parties  asked  the  court  to  instruct  a  verdict, 
both  affirmed  that  there  was  no  disputed  question  of  fact  ^  which 
could  operate  to  deflect  or  control  the  question  of  law.  This  was 
necessarily  a  request  that  the  court  find  the  facts,  and  the  parties 
are,  therefore,  concluded  by  the  finding  made  by  the  court,  upon 

1  The  action  was  brought  to  re-  suit,  that  there  was  no  dispute  as 
cover  back  the  duty  paid  under  pro-  to  the  facts,  and  that  there  was 
test,  on  the  ground  that  the  articles  nothing,  therefore,  to  be  submitted 
should  have  been  taxed  as  rugs  and  to  the  jury. 

not  as  carpets.  Second,  That  no  request  was  made 

2  See  Kearney  v.  Case,  12  Wall.  by  defendants '  counsel  to  go  to  the 
275,  post.  jury.     It  is  to  be  presumed  that  if 

3  Allen  J.,  in  Winchell  v.  Hicks,  the  counsel  had  insisted  upon  sub- 
18  N.  Y.  558,  "But  it  is  insisted  mitting  to  the  jury  any  of  the  ques- 
that  the  judge  should  have  sub-  tions  of  fact  involved  in  the  case, 
mitted  the  facts  to  the  jury;  and  the  court,  if  proper,  would  have  corn- 
that  he  erred  in  holding  as  matter  plied  with  the  request.  At  all 
of  law  that  the  payment  was  made  events,  it  is  too  late  to  raise  that 
by  the  request  of  the  sureties.  It  point  here,  for  the  first  time,  under 
may  be  answered  to  this  position,  the   general  exception   to  the  direc- 

First,  That  the  defendants  as-  tion  of  the  judge  to  the  jury  to 
sumed,   in   their   motion   for  a  non-       find  a  verdict  for  the  plaintiff." 


Sec.  4.]  beuttell  v.  magone.  367 

which  the  resulting  instruction  of  law  was  given.^  The  facts 
having  been  thus  submitted  to  the  court,  we  are  limited,  in  re- 
viewing its  action,  to  the  consideration  of  the  correctness  of  the 
finding  on  the  law,  and  must  affirm  if  there  be  any  evidence  in 
support  thereof.  Lehnen  v.  Dickson,  148  U.  S.  71 ;  Runkle  v, 
Burnham,  153  U.  S.  216. 

There  was  obviously  no  disputed  question  of  fact.  The  plain- 
tiff introduced  proof  tending  to  show  that  the  rugs  had  been 
woven  as  rugs  on  a  loom  prepared  for  that  purpose,  and  which  was 
therefore  not  suitable  for  weaving  carpeting ;  that  they  contained 
materials  used  in  making  rugs  which  were  not  the  kind  or  quality 
of  materials  used  in  making  carpets ;  that  their  size,  shape,  pat- 
tern, back,  and  other  qualities  made  them  distinctly  rugs  eo 
nomine  as  distinguished  from  rugs  made  "from  portions  of 
carpet  or  carpeting. ' '  From  this  evidence  was  deduced  the  con- 
clusion of  law  that  they  were  dutiable  as  rugs  at  40  per  cent 
ad  valorem.  Defendant's  testimony  tended  to  show  that  the 
rugs  were  called  Wilton  rugs,  were  a  plush  fabric  (which  was 
not  traversed  by  the  plaintiff's  testimony),  and  hence  were  of 
a  "like  character  and  description"  with  Wilton  carpet.  Upon 
these  facts  the  defendant  based  his  claim  that  as  matter  of  law 
they  were  dutiable  at  the  rate  imposed  on  such  carpets.     From 

4  Lumpkin,  J.,  in  Broadhurst  v.  sion  that,  if  this  jjosition  is  not  cor- 
Hill,  137  Ga.  833  (1912),  "It  was  rect,  a  verdict  may  be  directed  in 
argued,  that  because  the  plaintiffs  favor  of  the  other  party.  On  the 
in  error  moved  the  court  to  direct  contrary,  a  contention  that  the  evi- 
a  verdict  in  their  favor,  and  the  de-  dence  demands  a  verdict  for  one 
fendants  in  error  also  moved  for  the  party  prima  facie  includes  the  con- 
direction  of  a  verdict  in  their  favor,  tention  that  it  does  not  demand  a 
this  waived  the  question  of  whether  verdict  in  favor  of  the  other.  Of 
the  case  should  be  submitted  to  the  course  parties  may  agree  that  the 
jury,  and  that,  upon  overruling  the  case  is  controlled  by  a  question  of 
motion  of  the  plaintiffs  in  error,  the  law,  and  that  the  judge  shall  direct 
court  could  grant  that  of  the  de-  a  verdict  one  way  or  the  other,  and 
fendant  in  error.  The  motion  for  a  thus  waive  the  right  to  have  a  jury 
new  trial  distinctly  makes  the  point  pass  upon  the  facts.  In  Lydia  Pink- 
that,  under  the  evidence,  the  motion  ham  Co.  v.  Gibbs,  108  Ga.  138  (33 
for  the  defendants  in  error  should  S.  E.  945),  something  of  this  kind 
not  have  been  granted  but  the  case  occurred ;  and  moreover,  the  Su- 
should  have  been  submitted  to  a  preme  Court  held  that  there  was  no 
jnry.  The  mere  fact  that  a  party  conflicting  evidence  on  the  issue  in- 
to a  litigation  contends  that  the  volved.  In  the  present  case  there 
evidence  demands  a  finding  in  his  was  no  such  waiver  of  a  jury  trial 
favor  does  not  amount  to  a  conces-  on   the   facts. ' ' 


368  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

this  undisputed  evidence,  then,  arose  the  legal  question  whether 
rugs  of  the  kind  stated,  not  being  "portions  of  carpet  or  carpet- 
ing," were  taxable  as  Wilton  carpets,  because  they  were  of  like 
character  or  description,  that  is,  because  they  were  plush  fabrics. 
Wilton  carpets  were  also  a  plush  fabric.  The  correctness  of  the 
ruling  below  depends  upon  an  interpretation  of  the  language  of 
the  statute  which  we  quote  ;     *     *     * 


KOEHLER  V.  ADLER. 

78  New  York,  287.     [1879.] 

Church,  Ch.  J.  The  action  was  for  money  loaned,  and  the 
verdict  was  directed  by  the  court.  The  defendant  alleges  error 
in  not  submitting  the  case  to  the  jury.  At  the  close  of  the  evi- 
dence the  plaintiff  asked  the  court  to  direct  a  verdict  in  his  favor, 
and  the  defendant  then  requested  a  like  direction  in  his  favor. 
The  court  stated  that  he  thought  the  plaintiff  entitled  to  the 
direction.  The  counsel  for  defendant  then  asked  to  go  to  the 
jury  upon  the  question  whether  the  debt  in  suit  was  ever  con- 
tracted at  all.  This  was  denied,  and  an  exception  taken.  Upon 
these  facts  we  think  that  the  defendant  was  entitled  to  go  to  the 
jury  if  the  case  warranted  it.  If  nothing  further  had  been  done 
after  both  parties  asked  a  direction  of  a  verdict  it  would  be 
assumed  that  they  intended  to  waive  the  right  of  submission  to 
the  jury,  and  consented  that  the  court  should  decide  the  ques- 
tions of  law  and  fact  involved.  But  after  a  request,  and  a 
refusal  to  direct  a  verdict,  there  is  no  absolute  inconsistency  in 
asking  to  submit  questions  of  fact  to  the  jury.  It  is  not  proper, 
ordinarily,  to  direct  a  verdict  if  there  is  any  material  question 
of  fact  which  ought  to  be  submitted,  and  it  is  error  to  make  the 
direction  in  such  a  case.  Parties  may  consent,  however,  that  the 
court  may  pass  upon  all  questions  both  of  fact  and  law,  and  if 
they  do  they  will  be  bound,  and  when  both  parties  ask  a  direc- 
tion this  court  will  presume  such  consent.  In  this  ease  the  pre- 
sumption is  repelled  by  an  express  request  to  go  to  the  jury  upon 
a  question  of  fact.^    Besides  the  court  did  not  put  the  denial  to 

1  Accord:      Minnahan  v.  Ey.,  138  Where  no  request  to  submit  ques- 

Fed.  37;  Empire  Cattle  Co.  v,  Ry.,       tions  to  the  jury  is  made,  and  the 
210  U.  S.  1.  facts    are    thus    constructively    sub' 


Sec.  4.]  koehler  v.  adler.  369 

submit  the  question  of  fact  to  the  jury  upon  the  ground  that  the 
defendant's  counsel  had  irrevocably  waived  the  right,  but  it  was 
denied  presumably  upon  the  ground  claimed  here  that  the  cause 
of  action  was  proved  by  uncontradicated  evidence,  and  that  there 
was  no  question  to  submit,  and  that  point  is  now  before  us  for 
adjudication. 

The  action  was  brought  to  recover  $2,500  loaned  by  the  plain- 
tiff to  defendant's  intestate  on  the  30th  of  January,  1871,  with 
interest,  less  $250  paid  September  23d,  1874.  The  plaintiff  pro- 
duced a  check  made  by  himself,  dated  January  30,  1871,  upon 
the  Bullshead  Bank,  payable  to  the  order  of  the  defendant's 
intestate,  and  indorsed  by  him  and  another  person.  It  is  not 
claimed  that  this  check  is  evidence  of  money  loaned,  but,  on  the 
contrary,  the  presumption  is  that  it  was  paid  upon  some  debt 
or  obligation  owing  by  the  plaintiff.  The  evidence  relied  upon  is 
the  testimony  of  two  witnesses  as  to  certain  acts  and  admissions 
of  the  intestate,  which,  if  true,  did  establish  a  cause  of  action. 
One  of  them  testified  that,  in  September,  1871,  he  was  present 
when  the  plaintiff  and  intestate  were  together,  and  the  former 
produced  the  check  and  requested  payment,  and  charged  the 
defendant  that  he  procured  the  money  fraudulently ;  that  the 
defendant  admitted  it,  and  "begged  him  not  to  prosecute  him  as 
he  knew  he  could  bring  him  to  Sing  Sing."  This  witness  also 
testified  that  he  was  present  on  the  23d  of  September,  1874,  when 
the  intestate  paid  $250  on  the  check,  and  agreed  to  pay  the  bal- 
ance in  a  few  months.  Another  witness,  the  brother  of  plaintiff, 
testified  that  he  was  present  when  the  $250  were  paid,  and  cor- 
roborates the  first  witness  as  to  the  payment,  but  relates  the 
conversation  somewhat  differently  from  the  first  witness.  The 
plaintiff's  counsel  insists  that  this  evidence  being  uncontradicted, 
could  not  as  a  matter  of  law  be  disregarded,  and  if  there  was 
nothing  else  in  the  case,  this  position  would  be  correct. 

It  is  a  general  rule  that  the  positive  testimony  of  an  unim- 
peached,  uncontradicted  witness  cannot  be  disregarded  by  the 
court,  or  jury,  arbitrarily  or  capriciously  (Lomer  v.  Meeker,  25 
N.  Y.  361),  but  in  applying  this  rule  great  care  should  be  exer- 
cised.    In  El  wood  V.   The  Western  Union  Telegraph  Co.    (45 

mitted  to  the  court,  the  question  as  Fed.    794;    Love   v.    Seatcherd,    146 

to  whether  there  is  any  evidence  to  Fed.  1 ;  Michigan  Co.  v.  Tabor,  141 

support  the  finding  by  the  court  is  Fed.  332;  Melton  v.  Bank,  190  Fed. 

open  to  review.     Ins.  Co.  v.  Ey.,  134  127. 
H.  T.  p.— 24 


370  CONDUCT    OF   THE   TRIAL,  [ChAP.  IV. 

N.  Y.  549),  Rapallo,  J.,  in  delivering  the  opinion  of  this  court, 
said:  "But  this  rule  is  subject  to  many  qualifications.  There 
may  be  such  a  degree  of  improbability  in  the  statements  them- 
selves as  to  deprive  them  of  credit,  however  positively  made. 
*  *  *  And  furthermore,  it  is  often  a  difficult  question  to 
decide  when  a  witness  is  in  a  legal  sense  uncontradicted.  He  may 
be  contradicted  by  circumstances  as  well  as  by  statements  of 
others  contrary  to  his  own.  In  such  cases  courts  and  juries  are 
not  bound  to  refrain  from  exercising  their  judgment,  and  to 
blindly  adopt  the  statements  of  a  witness  for  the  simple  reason 
that  no  other  witness  has  denied  them,  and  that  the  character  of 
the  witness  is  not  impeached. ' '  The  general  rule  was  held  not  to 
apply  in  Kavanagh  v.  Wilson  (70  N.  Y.  177),  where  it  was  in- 
ferred that  the  witness  might  be  interested  in  the  recovery,  and 
it  appeared  that  the  statement  was  not  entirely  free  from  im- 
probability. It  appeared  in  this  case  that  on  the  30th  day  of 
January,  1871,  when  the  alleged  loan  was  made,  and  for  a  con- 
siderable period  prior  and  subsequent  thereto,  the  plaintiff  and 
decedent  were  trustees  of  a  corporation  known  as  the  "Stone- 
wall Oil  Company,"  the  decedent  being  president  and  the  plain- 
tiff treasurer;  that  the  plaintiff  received,  and  paid  out  upon 
checks,  the  funds  of  said  company  in  his  individual  name ;  that 
while  said  parties  occupied  this  position  the  plaintiff  commenced 
an  action  against  said  company  for  a  large  sum  claimed  to  be 
his  due  for  advances  made;  that  in  the  bill  of  particulars  fur- 
nished in  said  action,  which  was  an  abstract  from  the  cash  book 
kept  by  the  plaintiff  of  receipts  and  disbursements  for  the  said 
corporation,  an  item  appeared  under  date  of  January  30,  1871, 
of  $2,500  paid  to  the  decedent ;  that  during  the  pendency  of  said 
action,  and  in  the  year  1873,  an  arrangement  between  the  plain- 
tiff and  decedent  was  made,  by  which  it  was  agreed  that  no 
evidence  should  be  interposed  on  behalf  of  the  company,  and 
that  plaintiff  should  be  allowed  to  take  judgment  for  the  amount 
which  tRe  referee  should  report,  and  by  which,  in  consideration 
of  $5,000,  secured  to  be  paid,  the  decedent  was  released  from  any 
personal  liability  on  account  of  said  alleged  indebtedness  to  the 
plaintiff,  and  the  decedent  assigned  to  the  plaintiff  all  his  interest 
in  the  property  of  the  corporation.  Mr.  Boardman,  counsel  for 
the  defendant  in  that  action,  and  in  this,  testified  that,  after  the 
release  was  given,  he  said  to  both  parties:    "This  settles  all  the 


Sec.  4,]  German  savings  bank  v.  bates.  371 

matters  between  you,  does  it  not?"  and  they  both  replied,  "It 
does." 

This  claim  was. not  mentioned  at  that  time,  nor  at  any  time, 
until  nearly  three  j'ears  after  the  intestate  died,  and  a  consider- 
able period  after  the  expiration  of  notice  to  creditors  to  produce 
their  claims.  In  view  of  these,  and  some  other  circumstances,  it 
cannot  be  affirmed  as  matter  of  law  that  the  evidence  of  the  two 
witnesses  produced  by  the  plaintiff  was  entirely  undisputed 
and  uncontradicted.  No  explanation  was  given  of  the  item  of 
$2,500  charged  to  the  company  on  the  same  day  of  the  alleged 
loan,  and  but  one  voucher  was  produced  which  might  as  well 
serve  for  that  charge  as  the  loan.  It  is  not  needful  to  determine 
how  the  fact  was,  but  only  that  there  were  circumstances  tending 
to  show  that  the  alleged  load  was  in  fact  money  advanced  to  the 
company.  It  may  be  that  the  evidence  of  these  two  witnesses 
ought  to  outweigh  all  the  circumstances  referred  to.  All  that 
we  intend  to  decide  is  that  it  was  a  question  of  fact  for  the  jury, 
and  not  one  of  law  for  the  court,  and  that  the  rule  invoked  is 
not  applicable  to  the  case.  It  follows  that  the  judgment  must  be 
reversed  and  a  new  trial  granted,  costs  to  abide  the  event. 


GERMAN  SAVINGS  BANK  v.  BATES. 

Ill  Iowa,  432.     [1900.] 

Gwen,  j.  *  *  *  II,  The  only  question  presented  in  this 
case  is  whether  the  original  note  was  satisfied  by  the  execution 
and  delivery  of  any  or  all  of  the  renewal  notes.  If  it  was  satisfied 
there  was  no  extension  of  the  time  for  its  payment,  and  if  it  was 
not  satisfied  plaintiff  could  have  sued  upon  it  at  any  time  after 
its  maturity,  and  in  that  case  there  was  no  extension  of  time.  If 
all  or  any  of  the  renewal  notes  were  received  by  the  plaintiff  in 
the  place  of,  and  in  satisfaction  of,  the  note  in  suit,  then  it  was 
satisfied ;  but  if  the  renewal  notes  were  received  under  an  agree- 
ment that  they  were  not  to  stand  in  lieu  of  the  first  until  indorsed 
as  it  was  indorsed,  and  that  the  first  was  to  be  in  force  until  that 
was  done,  then  there  was  no  satisfaction  of  the  note  in  suit.  The 
evidence  is  undisputed  that  such  was  the  agreement  when  the 
first  renewal  was  given,  but,  as  we  have  seen,  the  matter  of  the 


372  CONDUCT   OF   THE   TRIAL,  [ChAP.  IV, 

agreement  was  never  afterwards  mentioned,  and  it  may  well  be 
questioned  whether  in  giving  and  taking  the  later  renewal  notes 
the  parties  acted  upon  the  agreement  or  whether  they  abandoned 
it.  On  the  one  hand  we  have  the  fact  that  the  plaintiff  con- 
tinued to  hold  the  note  in  suit  without  any  indorsement  of  satis- 
faction thereon,  as  tending  to  show  that  it  acted  upon  the  agree- 
ment. On  the  other  hand,  we  have  the  fact  that  it  continued  to 
receive  these  renewal  notes  to  the  number  of  nine  or  ten,  and 
interest  up  to  November  2,  1896,  more  than  three  years  after  the 
note  in  suit  became  due,  without  demanding  payment  or  indorse- 
ment, as  tending  to  show  that  both  parties  thereto  abandoned 
said  agreement,  and  that  the  credit,  as  evidenced  by  the  renewal 
notes,  was  extended  to  the  defendant  company  alone.  The  pivotal 
question  in  the  case  is  whether  the  renewal  notes  were  all  given 
under  said  agreement,  or  whether  in  giving  the  later  notes  the 
agreement  had  been  abandoned.  There  are  other  facts  than  those 
we  have  mentioned  bearing  upon  the  question.  Though  there  is 
no  conflict  in  the  evidence,  the  conclusion  to  be  drawn  there- 
from is  one  about  which  minds  may  differ.  Therefore  it  cannot 
be  said  as  a  matter  of  law  which  is  the  correct  conclusion.  We 
think  that  question  should  have  been  submitted  to  the  jury,  and 
that  the  court  erred  in  sustaining  plaintiff's  motion  for  a  verdict. 
III.  At  the  close  of  all  the  evidence  the  defendant  moved  for  a 
verdict,  which  motion  was  overruled;  whereupon  the  plaintiff 
moved  for  a  verdict,  which  was  sustained.  Plaintiff  contends, 
as  was  contended  in  Bank  v.  Milling  Co.,  103  Iowa,  524,  that, 
as  each  party  moved  for  a  verdict,  each  waived  the  right  of 
submission  to  the  jury.  We  said  in  that  case:  "This  seems 
to  be  the  rule  established  by  the  weight  of  authority" — citing 
6  Enc.  PL  &  Prac.  703.  Holding  that  there  was  not  sufficient 
evidence  to  justify  the  court  in  directing  a  verdict  for  the  de- 
fendant, we  expressed  no  opinion  upon  the  question  thus  pre- 
sented. The  authority  referred  to  is  cited  by  the  plaintiff,  and 
is  as  follows:  "Where,  at  the  close  of  the  evidence,  on  a  jury 
trial,  both  parties  ask  for  the  direction  of  a  verdict,  it  will  be 
assumed  that  they  intend  to  waive  the  right  of  submission  to  the 
jury,  and  let  the  court  decide  the  question  involved,  both  of  law 
and  fact,  unless  the  party  whose  request  is  refused  asks  to  go  to 
the  jury  upon  the  questions  of  fact. ' '  A  number  of  cases,  mostly 
from  New  York,  are  cited  in  the  footnotes  as  supporting  this 
statement  of  the  rule.     This  court  has  never  passed  upon  the 


Sec.  4.]  German  savings  bank  v.  bates.  373 

question  of  application  of  this  rule  in  our  State,  and  we  under- 
stand that  the  practice  with  us  has  been  different.  In  Calder  v. 
Crowley,  74  Wis.  157,  wherein  the  question  was  raised,  but  not 
passed  upon,  the  court  said,  "that  it  would  be  slow  to  hold  that 
a  party  thereby  waived  his  right  to  have  the  questions  of  fact 
passed  upon  by  the  jury,"  and  we  concur  in  that  expression. 
Relying  upon  the  law  as  announced  in  Meyer  v.  Houck,  85  Iowa, 
319,  as  to  when  the  court  may  direct  a  verdict,  each  party  made 
his  motion.  By  his  motion  the  defendant  asked  for  a  verdict 
upon  the  claim  that  the  evidence  would  not  support  a  verdict  for 
the  plaintiff,  and  this  the  plaintiff  denied.  Plaintiff's  attitude 
as  against  defendant's  motion  was  that  of  insisting  that  there 
was  evidence  to  support  a  verdict  in  his  favor.  After  the  court 
ruled  with  him,  holding,  not  that  plaintiff  was  entitled  to  a 
verdict,  but  that  there  was  evidence  to  support  such  a  verdict 
if  the  jury  should  so  find,  plaintiff  moved  for  a  verdict.  The 
attitude  of  the  defendant  towards  that  motion  was  that  there 
was  not  evidence  to  support  a  verdict  for  the  plaintiff.  The 
parties  never  agreed  to  waive  a  jury,  and  to  submit  the  issue  of 
fact  to  the  court,  and  we  think  it  should  not  be  assumed  that  they 
so  intended.  They  differ  radically  as  to  the  proper  conclusion 
to  be  arrived  at  from  the  evidence  as  to  whether  all  the  renewal 
notes  were  given  under  the  agreement  that  the  one  in  suit  was 
to  remain  as  evidence  of  the  debt — a  matter,  as  we  have  said, 
about  which  minds  may  differ.  Neither  was  willing,  as  against 
the  motion  of  the  other,  to  waive  a  jury,  and  submit  this  differ- 
ence to  the  court,  but  each  was  impliedly  asking,  as  against  the 
other,  that  this  difference,  which  it  was  the  province  of  the  jury 
to  determine,  should  be  submitted  to  the  jury. 

Reversed.^ 

1  Accord:      Thompson  v.  Brennan,  Contra:       Sutter    v.    Vanderveer, 

104    Wis.    564;     Stauf    v.    Bingen-       122    N.    Y.    652.      The    rule   in   the 
heimer,    94    Minn.    309;    Louier    v.       Federal    Courts    appears    to    be    de- 
Bank,  153  Mich.   253;   Wolf  v.  Chi-       rived  from  the  New  York  doctrine, 
cago    Printing    Co.,    233    111.    501; 
Virginia    Hardware    Co.    v.    Hoyes, 
126  Tenn.  370   (1912). 


374  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

Section  5.    Nonsuits. 

(a)    When  permitted  or  directed. 

2  Lilly  Beg.  292-3. 

A.  There  is  a  difference  between  a  nonsuit  and  a  retraxit;  a 
nonsuit  is  always  upon  a  demand  made  for  the  plaintiff  to  appear, 
and  he  makes  a  default ;  a  retraxit  is  when  the  plaintiff  is  present 
in  court,  A  retraxit  is  in  bar  of  all  other  actions  of  the  like 
nature,  but  a  nonsuit  is  not,  unless  in  some  particular  cases ;  for 
it  may  be  the  plaintiff  hath  mistaken  something  in  his  declaration, 
or  that  his  witnesses  who  should  prove  his  action  are  not  present. 

B.  A  nonsuit  in  an  appeal  of  murder,  rape,  robbery,  etc.,  after 
appearance  is  peremptory,  and  this  is  in  favorem  vitae.  Co.  Litt. 
138,  139. 

C.  In  real  or  mixed  actions,  the  nonsuit  of  one  of  the  demand- 
ants is  not  the  nonsuit  of  both,  for  he  which  makes  default  shall 
be  summoned  and  severed.  But  regularly  in  personal  actions,  the 
nonsuit  of  one  plaintiff  is  the  nonsuit  of  both,  unless  in  some 
particulars.     Ibid. 

D.  Upon  a  trial  when  the  jury  comes  to  deliver  in  their  verdict, 
and  the  plaintiff  is  called  to  hear  the  verdict ;  if  he  do  not  appear 
after  he  is  thrice  called  by  the  cryer  of  the  court,  he  is  to  be 
nonsuited,  and  the  nonsuit  is  to  be  recorded  by  the  secondary, 
by  the  direction  of  the  court,  at  the  prayer  of  the  defendant's 
counsel :  Hill.  21  Car.  B.  R.  For  the  court  will  not  order  it  to 
be  recorded,  except  the  counsel  pray  it  for  the  client. 

F.  The  king  cannot  be  nonsuited,  because  in  judgment  of  law 
he  is  always  present  in  court ;  but  his  attorney-general  may  enter 
a  nolle  prosequi. 

K.  When  a  plaintiff  is  nonsuit,  if  he  will  again  proceed,  in  the 
same  cause,  he  must  put  in  a  new  declaration,  and  cannot  proceed 
upon  that  declaration,  whereupon  he  did  proceed  in  the  cause,  and 
wherein  he  became  nonsuit :  22  Car.  B.  R.  16,  Apr.  1650.  B.  S. 
For  by  his  being  nonsuit  it  shall  be  intended  that  he  had  no  such 
cause  of  suit  as  he  declared  in;  and  so  that  declaration  is  void, 
and  he  hath  no  day  in  court. 


Sec.  5.]  Arnold  v.  johnson.  375 

ARNOLD  V.  JOHNSON. 

1  Strange,  267.     [Nisi  Prius,  1720.] 

The  cause  was  called,  and  the  jury  sworn,  but  no  counsel, 
attorneys,  parties  or  witnesses  of  either  side  appeared.  Sergeant 
Whitaker  being  asked  his  opinion,  said  the  plaintiff  ought  to  be 
called,  for  the  jury  being  charged,  the  cause  must  be  carried  on 
to  some  determination.  But  the  chief  justice  said,  that  nobody 
had  a  right  to  demand  the  plaintiff  but  the  defendant,^  and 
therefore  the  defendant  not  demanding  him,  he  could  not  order 
him  to  be  called,  but  the  only  way  was  to  discharge  the  jury. 
And  Mr.  Ketelby  remembered  a  case  where  my  Lord  Parker 
did  so  upon  the  like  accident.  Smith  v.  AVhistler,  Cas.  Temp. 
Hard.  305,  S.  P. 


CASTLE  V.  BULLARD. 

23  Howard  (U.  8.),  172.     [1859.] 

Clifford,  j.     *     *     * 

As  the  facts  have  been  found  by  the  jury,  the  questions  to  be 
determined  are  those  that  arise  upon  the  exceptions.  Of  these, 
the  first  in  the  order  of  the  argument  at  the  bar  is  the  one 
founded  upon  the  refusal  of  the  court  to  order  a  nonsuit  as  to 
the  defendant,  Granger,  as  requested  by  the  counsel  at  the  close 
of  the  plaintiff's  testimony. 

Several  answers  may  be  given  to  this  complaint,  each  of  which 
is  sufficient  to  show  that  the  exception  cannot  be  sustained.     In 

1  Under  modern  statutes  courts  the  return  of  the  writ;  but,  by  the 
very  generally  have  power  to  dis-  rules  of  this  court,  if  he  do  not  de- 
miss  a  case  for  failure  to  plead  or  liver  his  declaration  within  two 
otherwise  prosecute  the  action,  or  terms,  the  defendant  may  sign  judg- 
for  failure  to  comply  with  an  order  ment  of  non  pros.  Though,  unless 
of  the  court.  See  111.  E.  S.  1913,  he  take  advantage  of  the  plaintiff's 
Chap.  110,  §§21,  32;  Mo.  E.  S.  neglect,  the  plaintiff  may  still  de- 
1909,  §  2259.  BuUer,  J.,  in  Worley  liver  his  declaration  within  the  year. 
V.  Lee,  2  Term  Eep.  112  (1787):  Therefore  Per  Curiam,  rule  dis- 
' '  By   the    general    rules    of    law,    a  charged. ' ' 

plaintiff  must  declare  against  a  de-  See  comments  in   Holmes   v.   Ey., 

fendnnt  within  twelve  months  after  94  111.  439. 


376  CONDUCT    OP   THE   TRIAL,  [ChAP.  IV. 

the  first  place,  Circuit  Courts  have  no  power  to  grant  a  per- 
emptory nonsuit  against  the  will  of  the  plaintiff.  It  was  ex- 
pressly so  held  by  this  court  in  Elmore  v.  Grymes  and  al.,  1  Pet. 
471,  and  the  same  rule  was  also  affirmed  in  DeWolf  v.  Rabaud 
and  al.,  1  Pet.  497.  In  the  case  last  named  the  defendants  at 
the  trial,  after  the  evidence  for  the  plaintiff  was  closed,  moved 
the  court  for  a  nonsuit,  which  was  denied,  and  the  defendant 
excepted,  and  sued  out  a  writ  of  error ;  but  this  court  held  that 
the  refusal  to  grant  the  motion  constituted  no  ground  for  the 
reversal  of  the  judgment,  remarking,  at  the  same  time,  that  a 
nonsuit  cannot  be  ordered  in  any  case  without  the  consent  and 
acquiescence  of  the  plaintiff.^ 

Repeated  decisions  have  been  made  to  the  same  effect;  and  as 
long  ago  as  1832  it  was  declared,  as  the  opinion  of  this  court,  in 
Crane  v.  The  Lessees  of  Morris,  6  Pet.  609,  that  this  point  was 
no  longer  open  for  controversy.  See  also  Silsby  v.  Foote  and  al., 
14  How.  222. 

Another  answer  to  this  complaii^t  arises  from  the  fact  that 
the  motion  for  nonsuit  is  inappropriate  in  a  case  like  the  present, 
where  there  are  other  defendants  to  whom  it  cannot  be  applied. 
In  actions  of  this  description,  where  there  is  more  than  one 
defendant,  the  charge,  beyond  question,  as  a  general  rule,  is 
joint  and  several,  and  consequently,  one  may  be  found  guilty  and 
another  not  guilty;  but  at  common  law  there  cannot  regularly 
be  a  nonsuit  as  to  one  and  a  verdict  as  to  others;  and  for  that 
reason,  whenever  it  appears  that  there  is  evidence  in  the  case  to 
charge  one  or  more  of  the  defendants,  a  nonsuit  is  never  granted 
at  common  law,  even  in  jurisdictions  where  the  authority  to  grant 
the  motion  in  a  proper  case  is  acknowledged  to  exist.  Revett  v. 
Brown,  2  M.  &  P.  18;  Collier  on  Part.  (Am.  ed.,  1848),  §809, 
p.  698.2 

1  By   statute   or  local   practice   in  2  in    a   proper    case   the   plaintiff 

a  number   of   states,   non   suits   are  may  dismiss  as  to  one  defendant  and 

directed  for  failure  of  proof.     See  proceed    against    the    others.      Cal- 

Bournonville  v.  Goodall,  10  Pa.  St.  laghan  v.   Myers,   89  111.   566.     For 

133;  Bopp  V.  Electric  Co.,  177  N.  Y.  a  distinction  between  tort  and  con- 

33 ;    Carroll  v.   Electric  Co.,   49   Or.  tract  cases  in  this  respect,  see  Minor 

477.     Where   this   practice   obtains,  v.  Bk.,  1  Pet.    (U.  S.)   72. 
the  application  raises  the  same  ques- 
tions as  a  motion  to  direct  a  verdict, 
Holmes  v.  Ey.,  94  111.  439. 


Jl 


Sec.  5,]  st,  john's  lodge  v.  c.vllender.  377 

ST.  JOHN'S  LODGE  v.  CALLENDER. 

4  Iredell,  335.     [1844.] 

Upon  the  trial  of  an  issue  of  devisavit  vel  non,  the  plaintiff 
propounded  a  paper  writing  as  the  last  will  and  testament  of 
Joseph  Dean,  and  gave  evidence  tending  to  prove  its  execution. 
The  charge  was  unfavorable  to  the  proponent,  who  thereupon 
asked  to  enter  a  nonsuit,  which  was  refused.  The  jury  returned 
a  verdict  for  defendants,  and  plaintiff  appealed  from  the  sentence 
pronounced  thereon.  ^ 

RUFFIN,  C.  J.      *     *      * 

We  are  not  sure  that  we  understand  what  was  meant  by  the 
appellants'  asking  leave  to  suffer  a  nonsuit,  as  the  term  is  not 
appropriate  to  proceedings  in  a  Court  of  Probate.  But  from 
analogy  to  actions  at  law  we  suppose  the  object  was  to  withdraw 
from  the  court  before  a  verdict  was  rendered  on  the  issue, 
devisavU  vel  non,  so  as  to  prevent  the  delivery  of  a  verdict,  and 
leave  the  party  at  liberty  to  institute  another  proceeding  of  the 
same  kind.  If  so,  we  think  it  inconsistent  with  a  proeeeding  of 
this  sort  and  contrary  to  the  nature  of  the  jurisdiction  of  the 
Court  of  Probate.  The  instrument  propounded  is  always  brought 
into  court  in  the  first  instance,  and  the  jurisdiction  is  in  r&m. 
The  inquiry  is  whether  the  party  deceased  died  testate,  or  intes- 
tate, and  if  the  former,  whether  the  script  propounded  be  his 
will  or  a  part  of  it,  or  not. 

When  once  regularly  raised,  the  court  must  pronounce  on 
those  questions,  without  reference  to  the  presence  of  this  or  that 
person;  for  the  sentence,  until  annulled,  binds  all  the  world. 
If  a  cause  is  about  to  be  heard  or  under  a  hearing,  and  a  party 
ill  interest  is  not  furnished  with  full  proof  and  has  been  sur- 
prised, his  course  is,  for  cause  shown,  to  get  an  order  for  opening 
the  case  to  farther  proof  and  deferring  the  pronouncing  of 
sentence.  Thougli  not  in  form,  it  is  in  substance  not  materially 
different  upon  an  issue  made  up  and  tried  in  a  court  of  law 
under  our  statute.  It  is  analogous  to  the  trial  of  an  issue  out 
of  chancery — only,  the  one  is  at  the  instance  of  the  chancellor  to 
satisfy  his  conscience,  and  the  other  the  law  compels  the  Court 
of  Probate  to  make  up  in  every  case  of  a  disputed  will.  From 
the  nature  of  an  issue,  he,  who  alleges  the  affirmative,  opens  the 

1  Statement   has   been    condensed. 


378  CONDUCT   OP   THE   TRIAL.  [ChAP.  IV. 

case,  and  for  that  reason  the  party  propounding  the  will  is  com- 
monly spoken  of  as  the  plaintiff.  But  it  is  inaccurate;  for, 
properly  speaking,  there  is  neither  plaintiff  nor  defendant,  but 
both  sides  are  equally  actors  in  obedience  to  the  order  directing 
the  issue.  In  neither  case  is  the  party  in  the  affirmative  at 
liberty  to  withdraw  and  defeat  a  trial  more  than  the  party  in 
the  negative.  If  injustice  be  done  on  the  trial,  the  relief  is  to 
get  that  finding  set  aside  by  the  court  which  ordered  the  issue, 
and  have  it  tried  again.  We  have  not  known  of  any  other  course. 
It  is  especially  proper  in  the  Court  of  Probate.  After  an  allega- 
tion propounding  a  will  has  been  received,  until  it  has  been 
decided,  and  the  paper  pronounced  against,  administration  can- 
not be  granted;  for  the  jurisdiction  to  grant  administration  is 
only  where  there  is  an  intestacy,  and  that  is  always  declared 
before  or  at  the  granting  of  the  letters  of  administration,  and 
recited  in  them.     Slade  v.  Washburn,  3  Ired.  557. 

It  would  be  most  absurd  to  keep  the  question  of  intestacy  ever 
open  by  allowing  one,  setting  up  a  pretended  w^ill,  to  propound 
and  repropound  it,  and  at  his  pleasure  to  baf&e  the  court  and 
hinder  sentence  from  being  finally  pronounced,  by  withdrawing 
from  the  court.  It  cannot  be  so.  On  the  contrary,  the  paper 
itself,  the  res  is  suh  judice,  and  the  judge  gives  his  sentence  for 
or  against  it,  without  noticing  particular  persons.  The  court 
endeavors  that  all  parties  in  interest  shall  have  notice,  that  the 
instrument  is  sul)  lite;  and,  that  done,  the  sentence  binds  persons 
having  such  notice  as  much  as  if  they  were  parties  acting  in  the 
proceedings.  Redmond  v.  Collins,  4  Dev.  437.  The  object  of  the 
motion  in  this  ease  could  not,  therefore,  be  effected;  for  if  the 
party  could  1)6  allowed  to  withdraw  and  had  withdrawn  from  the 
cause,  he  could  not  have  taken  the  instrument  with  him.  It  still 
remained  in  the  custody  of  the  law,  and  the  court  must  have 
proceeded  to  sentence  against  it,  which  would  have  concluded 
this  person  as  it  would  others,  while  the  sentence  remained  in 
force,  and,  further,  would  "have  concluded  him,  once  acting  in 
the  cause,"  from  repropounding  the  instrument.  As  the  paper 
was  only  propounded  by  the  devisee,  as  a  will  of  real  estate,  our 
view  is  confirmed  to  the  points  arising  out  of  the  statute. 

Per  curiam.     Sentence  affirr^^d? 

2  Accord :  Benoist  v.  Murrin,  48 
Mo.  48;  but  see  Hitchcock  v.  Green, 
235  lU.  298. 


Sec.  5.]  merchants'  bank  v.  schulenberg.  379 

MERCHANTS'  BANK  v.  SCHULENBERG. 

54  Michigan,  49.     [1884.] 

Sherwood,  J.  This  case  has  once  before  been  in  this  court 
(48  Mich.  102),  but  the  questions  then  raised  have  no  bearing 
upon  the  points  made  in  the  present  record.  The  action  is 
assumpsit  upon  a  Canadian  judgment  rendered  in  the  Court  of 
Queen's  Bench  in  the  province  of  Ontario.  The  plea  was  the 
general  issue,  with  notice  of  set-off  and  other  special  matter  in 
bar  of  the  suit.  Under  the  set-off  defendant  claimed  to  be  en- 
titled to  a  judgment.  There  was  no  contest  as  to  the  amount 
of  the  plaintiff's  claim  upon  the  trial.  The  record  of  the  Ontario 
judgment  was  introduced  in  evidence  without  objection,  and  the 
plaintiff's  counsel  rested  his  case. 

The  defendant  then  examined  two  witnesses  upon  his  part, 
and,  when  nearly  ready  to  close  the  defense,  counsel  for  plaintiff 
announced  to  the  court  that  he  was  taken  by  surprise  by  the 
defendant's  testimony;  was  not  then  prepared  to  meet  it;  and 
asked  leave  of  the  court  to  submit  to  a  nonsuit,  with  the  right  to 
move  to  set  the  same  aside.  This  application  of  plaintiff 's  coun- 
sel was  objected  to  by  the  defendant,  on  the  ground  that  since 
the  suit  was  commenced  the  Statute  of  Limitations  had  com- 
menced to  run  against  the  claim  stated  in  his  notice  of  set-off. 
The  objection  was  overruled  by  the  court,  and  counsel  for  the 
defendant  excepted.  Counsel  for  defendant  thereupon  admitted 
the  plaintiff's  claim  for  $531,000  stated  in  his  declaration,  and 
claimed  his  readiness  to  make  proof  of  his  offset  to  the  amount  of 
$646,348  and  insisted  upon  his  right  to  proceed  with  the  trial, 
establish  his  claim,  and  have  a  verdict  for  the  surplus  in  his 
favor,  and  requested  the  court  to  permit  him  to  do  so.  Counsel 
for  plaintiff  objected,  the  court  sustained  the  objection,  and 
defendant's  counsel  again  excepted.  These  two  exceptions  are 
now  before  us  for  consideration,  and  ojily  these. 

The  question  is  simply  this :  Whether,  under  our  statute,  when 
the  defendant  has  given  notice  of  set-off  and  claims  a  balance 
in  his  favor,  the  plaintiff  can  discontinue  his  suit,  or  be  per- 
mitted to  discontinue  it,  without  the  consent  of  and  against  the 
wishes  of  the  defendant. 

Set-off  is  a  mode  of  defense.  By  it  the  existence  of  the  demand 
sued  upon  is,  in  a  certain  sense,  admitted ;  but  at  the  same  time, 


380  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

the  defendant  sets  up  a  demand  against  the  plaintiff  to  counter- 
balance it,  in  whole  or  in  part,  and  under  our  statute  the  defend- 
ant may  have  judgment  for  any  balance  found  in  his  favor. 
Originally,  the  defendant's  claim  could  only  be  allowed  to  the 
extent  of  the  plaintiff's  demand  proved  on  the  trial.  Toml. 
Law  Diet :  Babbington  on  Set-off,  1.  At  common  law  the  defend- 
ant was  in  no  instance  allowed  to  recover  judgment  for  damages 
for  a  positive  claim  against  the  plaintiff.  To  obviate  the  rigor  of 
this  rule  of  law,  and  to  avoid  a  multiplicity  of  suits  where  mutual 
cross-demands  existed,  unconnected  with  each  other,  and  to  have 
the  whole  adjudicated  upon  in  one  action,  was  the  great  object 
of  the  statute  of  set-off.     Ward  v.  Fellers,  3  Mich.  281. 

The  right  of  set-off  at  law  is  given  by  statute,  and  is,  of  course, 
limited  by  it.  The  common  law  never  recognized  it.  Bacon 
Abr.  tit.  "Set-off:"  Woods  v.  Ayres,  39  Mich.  345. 

How.  Stat.,  §  6886,  of  the  chapter  authorizing  set-off  in  justice's 
court,  reads  as  follows:  "If  the  amount  of  set-off  duly  estab- 
lished be  equal  to  the  plaintiff's  debt,  judgment  shall  be  entered 
for  the  defendant,  with  costs;  if  it  be  less  than  the  plaintiff's 
debt,  the  plaintiff  shall  have  judgment  for  the  residue  only,  with 
costs;  if  it  be  more  than  the  plaintiff's  debt,  and  the  balance 
found  due  to  the  defendant  from  the  plaintiff  in  the  action  be 
three  hundred  dollars  or  under,  judgment  shall  be  rendered  for 
the  defendant  for  the  amount  thereof,  with  costs ;  and  execution 
shall  be  awarded  as  upon  a  judgment  in  a  suit  brought  by  him ; 
but  no  such  judgment  shall  be  rendered  against  the  plaintiff 
when  the  contract  which  is  the  subject  of  suit  shall  have  been 
assigned  before  the  commencement  of  such  suit,  nor  for  any 
balance  due  from  any  other  person  than  the  plaintiff  in  the 
action."  The  same  provisions  are  made  applicable  to  proceed- 
ings in  courts  of  record,  in  cases  of  set-off.  See  How.  Stat., 
§§  7367,  7368. 

The  object  of  the  statute  is  beneficial  and  equitable,  and  in  its 
operation  it  proceeds  upon  equitable  principles.  Downer  v. 
Eggleston,  15  Wend.  55,  56. 

The  doctrine  of  set-off  was  borrowed  from  the  doctrines  of 
compensation  of  the  civil  law,  and  constituted  an  important  part 
thereof.  2  Both.  Obi.  No.  13,  p.  99 ;  Duncan  v.  Lyon,  3  Johns. 
Ch.  359;  Reab  v.  McAlister,  8  Wend.  115;  Whitaker  v.  Rush, 
1  Ambler,  407.  This  doctrine  was  also  followed  to  some  extent 
in  the  English  courts  before  the  statutes  of  set-off  were  enacted. 


Sec.  5,]  merchants'  bank  v.  schulenberg.  381 

See  Chapman  v.  Derby,  2  Vern,  117 ;  Lindsay  v.  Jackson,  2 
Paige^  581.  And  while  it  is  true  that  the  right  of  set-off  is 
statutory,  and  we  cannot  enlarge  the  right  beyond  what  the 
statute  reasonably  allows,  yet  the  courts  may,  and  it  is  their 
duty,  in  determining  regulating  and  applying  the  practice,  in 
securing  and  enforcing  that  right,  to  be  liberal  in  their  action, 
and  to  give  the  law  such  construction  as  will  secure  all  the 
benefits  and  advantages  intended. 

The  right  of  the  plaintiff  at  common  law  to  voluntarily  submit 
to  a  nonsuit,  or  to  discontinue  his  suit  at  any  time  before  the 
jury  have  rendered  their  verdict,  is  well  supported  by  the 
authorities,  and  has  always  been  the  practice  in  this  State  when 
no  set-off  has  been  pleaded.  3  Chit.  Pr.  910;  1  Burrill's  Pr. 
241 ;  Wooster  v.  Burr,  2  Wend.  295 ;  Circuit  Court  Rule  26 ;  1 
Green's  Pr.  447,  279 ;  Slocomb  v.  Thatcher,  20  Mich.  52.  I  think 
that  when  the  set-off  is  purely  defensive,  and  no  affirmative  action 
is  required  on  the  part  of  the  court  or  jury,  the  right  of  the 
plaintiff  to  become  nonsuited  at  his  pleasure,  before  verdict  or 
judgment,  should  be  in  the  discretion  of  the  court;  which  dis- 
cretion should  not  be  exercised  against  the  right,  except  in  cases 
M'here  the  rights  of  the  defendant  might  be  prejudiced. 

Under  the  statute,  however,  authorizing  a  judgment  to  be 
rendered  in  case  of  set-off  for  any  balance  found  due  the  defend- 
ant upon  trial,  the  rule  is  and  should  be  different.  In  such  a 
case,  really  two  suits  are  pending  before  the  court  to  be  tried 
at  the  same  time.  In  the  one  the  plaintiff  has  the  affirmative  of 
the  issue:  and  in  the  other,  the  defendant  has  the  affirmative. 
It  is  only  after  the  trial,  when  the  extent  of  each  party's  claim 
has  been  ascertained,  that  the  liquidation  of  the  smaller  claim 
occurs  by  way  of  set-off,  or  can  be  made  by  the  court  or  jury. 

The  statute  requires  the  defendant  to  bring  forward  his  claim 
for  adjudication  at  the  time  the  plaintiff  brings  his  suit,  and 
thereby  determines  the  time  when  the  defendant  shall  have  his 
claim  adjudicated,  at  the  peril  of  doing  so  at  his  own  expense. 
In  all  other  respects  the  ease  stands  as  though  two  separate  suits 
were  brought  to  determine  the  rights  of  the  parties;  and  I  fail 
to  see  why  l)oth  cases  should  not  be  governed  by  the  same  rules, 
and  receive  the  same  treatment  at  the  hands  of  the  court.  Simple 
justice  requires  this,  and  I  can  see  no  reason  why  the  equitable 
rules  upon  which  the  whole  doctrine  of  set-off  is  based  should 
not  be  carried  out  in  the  practice  of  these  cases.     Adopting  this 


382  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

rule,  the  plaintiff  would  have  no  more  right  to  discontinue  the 
defendant's  suit  than  the  latter  would  that  of  the  former;  and 
such,  I  think,  should  be  the  law. 

These  views  find  support  in  the  following  authorities,  which  1 
think  should  govern  this  case:  Thomas  v.  Hill,  3  Tex.  270; 
Bradford  v.  Hamilton,  7  Tex.  55,  58,  59;  Francis  v.  Edwards, 
77  N.  C.  271,  275;  Riley  v.  Carter,  3  Humph.  (Tenn.)  230; 
Rees  V.  Van  Patten,  13  How.  Pr.  258 ;  Cockle  v.  Underwood,  3 
Duer,  676 ;  Van  Alen  v.  Schermerhorn,  14  How.  Pr.  287. 

I  think  the  exceptions  of  defendant's  counsel  to  the  action  of 
the  court,  in  not  allowing  the  defendant  to  make  full  proof  of 
his  claim  and  take  judgment  therefor,  were  well  taken.  The 
judgment  must  be  reversed  with  costs  and  a  new  trial  granted. 

Campbell,  J.     Concurred. 

CooLEY,  C.  J.  In  this  case  the  defendant  relied  upon  a  set-off, 
which,  he  claimed,  was  larger  than  the  plaintiff's  demand,  and 
he  brings  the  case  to  this  court,  assigning  for  error  the  order 
of  the  Circuit  Court  permitting  the  plaintiff,  notwithstanding 
his  objection,  to  submit  to  a  nonsuit. 

The  general  right  of  the  plaintiff  to  discontinue  his  suit  or 
to  submit  to  a  nonsuit,  at  any  time  before  verdict,  is  undoubted ; 
and  in  the  absence  of  any  statute  taking  away  the  right  it  exists 
in  the  cases  where  set-off  is  relied  upon,  to  the  same  extent  as  in 
other  cases.  This  is  fully  recognized  in  Cummings  v.  Pruden, 
11  Mass.  206,  and  Branham  v.  Brown,  1  Bailey  262.  In  several 
states  statutes  have  been  passed  taking  away  the  right,  but  we 
have  no  such  statute.  The  fact  that  the  statute  of  set-offs 
permits  judgment  to  be  taken  by  the  defendant  for  the  balance 
found  due  him,  does  not  preclude  a  discontinuance.  Cummings 
V.  Pruden,  supra. 

But  it  is  said  there  are  decisions  to  the  contrary  of  these,  and 
several  are  referred  to.  The  Texas  cases  are  not  in  point,  as 
they  are  decided  under  the  civil  law,  which  does  not  prevail  in 
this  State.  Egery  v.  Power,  5  Tex.  501 ;  Walcott  v.  Hendrick, 
6  Tex.  406;  Bradford  v.  Hamilton,  7  Tex.  55.  The  case  of 
Francis  v.  Edwards,  77  N.  C.  271,  was  decided  upon  a  construc- 
tion of  the  code  of  that  State,  and  therefore  has  no  bearing. 
In  Riley  v.  Carter,  3  Humph.  230,  the  defendant  had  obtained 
judgment  for  his  set-off  in  justice's  court,  and  the  plaintiff 
removed  the  case  to  the  Circuit  Court  by  certiorari,  and  then, 
in  that  court,  was  given  leave  to  dismiss  his  suit.     This  was  pal- 


Sec.  5.]  anonymous.  383 

pable  error,  and  the  court  so  held;  but  we  discover  no  analogy 
between  that  case  and  this.  The  defendant  had  his  judgment, 
and  unless  error  was  shown,  had  a  right  to  retain  it.  The  three 
New  York  cases  of  Cockle  v.  Underwood,  3  Duer,  676;  Rees  v. 
Van  Patten,  13  How.  Pr.  258,  and  Van  Alen  v.  Schermerhorn, 
14  How.  Pr.  287,  are  not  in  point,  because  decided  under  the 
State  code;  but  so  far  as  they  can  be  considered  as  having  a 
bearing,  they  are  against  the  defendant  instead  of  for  him,  for 
they  all  recognize  the  power  of  the  court  in  its  discretion  to  per- 
mit the  plaintiff  to  discontinue ;  which  is  all  that  is  necessary  to 
sustain  this  judgment. 

The  judgment  should  be  affirmed. ^ 

Champlin,  J.,  concurred. 


ANONYMOUS. 

Bellewe,  Lcs  Ans  du  Roy,  Richard  II,  251. 

Skipwith  reported  to  Belknapp  that  a  nisi  prius  was  held 
before  him  at  St.  ^lartins  upon  an  issue  of  plene  adyninistravit, 
and  the  plaintiff  alleged  assets;  and  the  plaintiff*  was  called  and 
came,  and  the  inquest  returned  and  found  that  he  had  fully 
administered  except  ten  shillings  and  a  chest.  Skipwith  asked 
the  inquest  the  value  of  the  chest,  and  the  inquest  considered, 
and  upon  this,  the  plaintiff  prayed  that  he  be  called;  Skipwith: 
Nous  rolumvs  de  hene  esse  et  nemy  de  rigore  juris;  and  the 
plaintiff  was  called  and  came  not,  and  the  inquest  said  after 

1  Accord:       Wooster    v.    Burr,    7  tiff  is  not  barred  from  a  second  ac- 

Wendel    295 ;    Conrad   v.   Finek,    47  tion.    Anderson  v.  Gregory,  43  Conn. 

Mo.    173    (prior    to   present    code)  :  61.  ' 

The  matter  is  now  largely  regulated  After  a  verdict  for  defendant  has 

by  statute.     See  111.  Statutes  1913,  been  set  aside,  plaintiff  cannot  take 

Chap.    110,    §48;    Mo.    R.    S.    1909,  a  non  suit  so  as  to  deprive  defend- 

§  1878.  ant  of  appellate  review.     Floody  v. 

In    Wisconsin    and    several    other  Great  Northern  Ey.  Co.,  104  Minn, 

states,  a  dismissal  leaves  the  counter  517. 

claim    unaffected.      Bertchy    v.    jNIc-  For    other    situations    where    the 

Leod,   32    Wis.    205.      When    a   non  lights  of  the   defendant  preclude  a 

suit  is  taken  and  judgment  rendered  non  suit.     Carlton  v.  Darcey,  75  N. 

for  defendant  on  a  set  off,  the  plain-  Y.  375, 


H 


384  CONDUCT   OP   THE  TRIAL.  [ChAP.  IV. 

this  that  the  chest  was  of  the  value  of  half  a  mark.  And  now 
he  asked  if  the  plaintiff  should  be  nonsuited  in  this  case.  Bel- 
KNAPP:  Yes,  certainly,  because  at  any  time  before  full  verdict 
given  the  plaintiff  can  be  nonsuited ;  and  in  assize,  if  the  verdict 
makes  a  difficulty,  or  in  case  the  justices  send  out  the  inquest 
to  inquire  further,  and  again  if  there  is  further  inquiry  of  the 
damages,  and  they  have  not  fully  inquired,  the  plaintiff  can  be 
nonsuited,  with  which  Breton,  clerk,  concurred.  Skipwith  :  Of 
the  damages,  I  think  not,  when  the  principal  is  found.  Bel- 
KNAPP :  Yes,  certainly.  Breton,  clerk,  said  that  at  the  last  term 
a  nonsuit  was  awarded,  etc. 


ANONYMOUS. 

Bellewe,  Les  Ans.  du  Roy,  Richard  II,  252. 

Assize.  When  the  inquest  came  to  give  their  verdict,  the 
plaintiff  was  called  and  appeared,  and  the  assize  gave  their 
verdict  for  the  tenant :  and  the  court  was  opposed  to  them  because 
of  their  charge.  One  for  the  plaintiffs  prayed  that  he  be  called. 
Curia:  That  is  not  allowable  when  the  assize  have  given  their 
verdict,  and  were  adjourned  to  Westminster.  And  there  upon 
good  advice  it  was  adjudged  that  he  could  not  be  nonsuited  after 
good  verdict. 

OUTHWAITE  V.  HUDSON. 

7  Exchequer,  380.     [1852.] 

This  was  an  appeal  from  the  decision  of  the  judge  of  the 
County  Court  of  Yorkshire.  It  was  an  action  for  the  breach 
of  a  warranty  of  a  horse;  and  at  the  trial,  which  was  held  at 
Leeds,  after  the  judge  had  directed  the  jury,  and  whilst  they 
were  deliberating  upon  their  verdict,  the  plaintiff  stated  that  he 
elected  to  be  nonsuited.  To  this  the  defendant  objected;  and 
the  judge  said  that  he  thought  that,  as  the  case  had  been  left 
to  the  jury,  the  application  was  too  late,  and  that  he  would 
therefore  take  the  verdict,  but  reserve  leave  to  the  plaintiff  to 


Sec.  5.]  keat  v.  barker.  385 

move  to  set  the  verdict  aside,  and  to  enter  a  nonsuit.  The  jury 
found  a  verdict  for  the  defendant.  The  plaintiff  never  moved 
to  set  aside  the  verdict  pursuant  to  the  leave  reserved,  but 
appealed  tc  this  court. 

Parke,  B.  The  judge  of  the  County  Court  was  wrong  in 
refusing  to  allow  the  plaintiff  to  be  nonsuited.  At  common  law, 
the  subject  had  a  right  to  be  nonsuited  at  any  stage  of  the  pro- 
ceedings he  may  please,  and  thereby  to  reserve  to  himself  the 
power  of  bringing  a  fresh  action  for  the  same  subject-matter. 
The  legislature  did  not,  by  the  9  &  10  Vict.  c.  95,  intend  to 
deprive  a  plaintiff,  who  sues  in  a  County  Court,  of  this  right, 
or  to  take  away  from  these  courts  the  power  of  nonsuiting,  which 
is  incidental  to  every  court.  The  plaintiff's  power  of  demanding 
to  be  nonsuited  continued  to  the  last  moment — until  the  jury 
had  given  their  verdict ;  or,  where  the  ease  is  tried  by  a  judge 
without  the  intervention  of  a  jury,  until  the  judge  had  pro- 
nounced his  judgment. 


KEAT  V.  BARKER. 
5  Modern,  208.     [B.  R.  1697.] 

An  action  was  brought  against  the  defendant  for  six  years 
wages  due  to  the  plaintiff  for  his  salary,  being  a  steward.  There 
was  a  verdict  for  the  plaintiff'  at  the  assizes  in  Berkshire,  and 
only  seven  pounds  damages  given. 

It  was  moved  to  discontinue  the  action,  and  that  the  postea 
might  not  be  brought  in. 

Sed  non  allocatur;  for  after  a  general  verdict  ^  the  court  will 
not  suffer  tEe  plaintiff  to  discontinue  his  action :  it  has  been 
allowed  after  a  special  verdict,^  and  an  argument  at  bar;  so 

1  Blenkiron  v.  Gas.  Co.,  2  Fos.  &  term  Hawkins  moved,  but  the  court 

Fin.  437.     ' '  The  jury  were  directed  were  clearly  of  the  opinion  that  the 

as  to   whether  the   defendant's   gas  plaintiff  was  too  late  in  his  applica- 

eaused  the  explosion,  but  were  unani-  tion  for  a  nonsuit, 
mous  in   finding  that  they  used   all  ~  After    special    verdict   a    discon- 

reasonable  precautions.   Hawkins  ap-  tinuance  may  be  allowed  as  a  matter 

plied   instantly   for   a   nonsuit;   but  of    discretion.      Price    v.    Parker,    1 

Coekburn,   C.   J. — That   is   too   late,  Salk.   178;    leave  to   discontinue  re- 

although  the  verdict  is  not  recorded.  fused  after  verdict  for  plaintiff  and 

Verdict  for  the  defendants."    Next  motion  in  arrest,  Anon.   1  Lev.  48. 

H.  T.  r.— 25 


386  CONDUCT    OP   THE   TRIAL,  [ChAP.  IV. 

likewise  after  a  joining  in  demurrer,  but  not  after  arguing  sucii 
demurrer.  But  the  statute  2  Hen.  4,  c.  7,  ordains,  "That  after 
verdict  a  plaintiff  shall  not  be  nonsuit ; ' '  which  was  otherwise  at 
common  law,  for  if  he  did  not  like  his  damages  he  might  be 
nonsuit. 

Note:  Lord  Howard's  Case,  1  Sid.  84;  Robinson  v.  Ban- 
brough,  2  Sid.  113.  But  on  special  circumstance  and  payment 
of  costs  the  court  will  permit  a  discontinuance  after  demurrer 
argued.     Jones  v.  Pope,  1  Sid,  305,  S.  C.  1  Saund.  37. 


SHAW  V.  BOLAND. 
15  Gray,  571.     [I860.] 

Writ  of  entry  to  foreclose  a  mortgage.  At  the  trial  in  the 
Superior  Court  before  Lord,  J.,  the  plaintiff's  counsel  fully 
opened  his  case  to  the  jury;  called  four  witnesses,  who  were 
sworn  generally  in  the  case ;  proceeded  to  examine  them,  in  the 
first  instance,  to  the  court,  for  the  purpose,  as  he  said,  of  show- 
ing the  existence  and  loss  of  the  mortgage  deed,  and  of  thus 
laying  the  foundation  for  the  introduction  of  secondary  evidence 
of  its  contents;  and  stated  that  he  should  further  examine  the 
same  witnesses  as  a  part  of  such  secondary  evidence.  The  wit- 
nesses were  all  cross-examined  by  the  defendant's  counsel,  and 
questions  were  put  to  them  by  the  judge,  who,  after  hearing  the 
testimony,  refused  to  admit  secondary  evidence  of  the  execution 
and  contents  of  the  mortgage;  and,  on  the  plaintiff's  request  and 
to  enable  him  to  procure  additional  evidence,  postponed  the 
further  hearing  of  the  case  for  four  days,  but  did  not  discharge 
the  jury.  At  the  end  of  the  time  granted,  the  plaintiff  intro- 
duced additional  evidence;  but  the  judge  did  not  change  his 
ruling.  The  plaintiff  proposed  to  become  nonsuit,  claiming  to 
do  so  as  a  matter  of  right ;  but  the  judge  refused  to  permit  it, 
a  verdict  was  taken  for  the  defendant,  and  the  plaintiff  alleged 
exceptions. 

Metcalp,  J,  The  exceptions  must  be  overruled  on  the  author- 
ity of  Locke  V.  Wood,  16  Mass.  317.  In  that  case  it  was  decided 
that  after  a  cause  is  opened  to  the  jury,  and  is  begun  to  be 
proceeded  in  before  them,  the  plaintiff  has  not  a  right,  of  his 


Sec.  5,]  berry  v.  savage.  387 

mere  pleasure,  to  discontinue  his  suit  or  to  become  nonsuit.  Mr. 
Justice  Jackson  had  previously  expressed  au  opinion  to  the  like 
effect  in  Haskell  v.  Whitney,  12  Mass.  48,  49.  Such,  therefore, 
is  now  the  law  of  this  connnonwealth,  whatever  it  may  be  else- 
where, or  may  have  been  here  under  the  colonial  ordinance  of 
1641,  which  is  found  in  Ane.  Chart.  46.  And  this  law  seems  to 
us  to  be  eminently  just.  As  a  nonsuit  is  no  bar  to  another 
suit  for  the  same  cause  of  action,  a  plaintiff  might  harass  a  de- 
fendant by  unlimited  litigation,  if  the  court  had  no  authority, 
in  any  case,  to  prevent  a  nonsuit. 

The  action  of  the  judge,  at  the  trial  of  this  case,  having  been 
an  exercise  of  his  judicial  discretion,  cannot  be  supervised  by 
us.i  Nor  is  the  question  before  us  whether  he  rightly  decided 
that  there  was  not  sufficient  proof  of  the  loss  of  the  plaintiff's 
mortgage  to  warrant  parol  proof  of  its  contents.  A  nonsuit  was 
refused,  and  a  verdict  taken,  solely — so  far  as  the  exceptions 
show — because  the  plaintiff  did  not  produce  legal  proof  of  the 
mortgage  which  was  necessary  to  the  maintenance  of  his  action, 
although  the  court  had  granted  him  all  the  time  that  he  asked 
for  to  procure  such  proof. 

Exceptions  overruled. 


BERRY  V.  SAVAGE. 

2  Scammon,  261.     [1840.] 

LoCKW^oOD,  Justice,  delivered  the  opinion  of  the  court :  The 
following  bill  of  exceptions  was  taken  on  the  trial  of  this  cause, 
to-wit:     "Be  it  remembered,  that  on  the  trial  of  this  cause,  after 

1  In  the   case   of  Lock  v.  Woods,  trial    court   might   pass    on    the    re- 

16  Mass.  317,  the  nonsuit  was  asked  quest  as  a  matter  of  discretion.     In 

and   refused   after  verdict  was   an-  Means  v.  Wells,  12  Mete.  356,  a  non- 

nounced  but  before  it  had  been  re-  suit    was    allowed    as    a    matter    of 

corded.     In  Washburn  v.   Allen,   77  discretion   after  the  trial   had   been 

Me.  344,  in  a  trial  without  a  jury,  begun   by   the    introduction    of   evi- 

plaintiff    asked    to    take    a    nonsuit  dence. 

at  the  close   of   the  evidence  which  A    hearing   before   an    auditor   or 

was   refused    as    a   matter    of    law ;  referee    is    not    a    trial    within    the 

the  Supreme  Court  after  an  exhaus-  meaning  of  this  rule.     Carpenter  v. 

tive  review  of   the  English,   Massa-  Ey.,   184  Mass.   98.     But  see  Allen 

chusetts    and    other    New    England  v.  Hickman,  156  Mo.  49. 
cases,    reversed    in    order    that    the 


388  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

the  evidence  had  been  submitted  to  the  jury,  and  the  jury  had 
retired  to  consider  their  verdict,  the  jury  returned  into  court, 
and  inquired  whether  or  not  the  note  was  to  be  considered  by  them 
as  it  read.  The  note  had  been  read  to  the  jury  as  evidence, 
under  the  declaration,  without  objection,  but  upon  the  return 
of  the  jury  into  court,  and  their  making  the  inquiry  aforesaid, 
it  appeared,  upon  examination  of  the  note,  that  it  was  made 
payable  on  the  ....  day  of  ....  one  thousand  eighteen  hundred 
and  thirty. 

"The  variance  between  the  note  and  the  declaration  had  not 
before  been  discovered  by  the  court,  or  mentioned  by  the  counsel 
on  either  side. 

"The  court  informed  the  jury,  that  they  were  bound  to  con- 
sider the  note  as  it  read,  and  as  not  being  due  until  time  expressed 
on  its  face ;  and  if,  from  their  reading  of  the  note  it  did  not 
appear  to  be  due,  they  must  find  for  the  defendants.  Where- 
upon, the  plaintiff's  counsel  stated  that  he  had  never  before 
discovered  the  variance  between  the  note  and  the  declaration, 
and  moved  the  court  to  permit  him  to  suffer  a  nonsuit,  which 
motion  being  objected  to  by  the  defendant's  counsel,  the  court 
overruled,  and  refused  to  permit  the  plaintiff  to  suffer  a  nonsuit. 
The  plaintiff,  by  his  counsel,  excepts. ' '     Etc. 

The  assignment  of  errors  questions  the  correctness  of  the 
instructions  to  the  jury,  and  the  refusal  to  permit  the  plaintiff 
to  suffer  nonsuit. 

At  common  law,  a  plaintiff  was  permitted  to  take  a  nonsuit, 
at  any  time  before  the  verdict  was  rendered  in  court.  (Wooster 
V.  Burr,  2  Wend.  95.)  But  by  the  13th  section  of  "an  act 
regulating  the  practice  in  the  Supreme  and  Circuit  Courts  of 
this  State,  and  for  other  purposes,"  passed  March  22,  1819,  it 
is  provided,  that  "every  person  desirous  of  suffering  a  nonsuit 
on  trial,  shall  be  barred  therefrom,  unless  he  do  so  before  the 
jury  retire  from  the  bar."     (R.  L.  486 ;  Gale's  Stat.  528.) 

In  order  to  bar  the  plaintiff's  right  of  submitting  to  a  nonsuit, 
the  jury  must  have  the  whole  of  the  case,  including  not  only  all 
the  evidence,  but  the  instructions  of  the  court.  Consequently, 
if,  for  any  cause,  the  jury  retire  from  the  bar  without  having  the 
whole  of  the  case  on  which  the}-  are  to  render  verdict,  the  plain- 
tiff's right  to  submit  to  a  nonsuit  is  not  taken  away. 

]\Iany  eases  might  be  put,  where  the  greatest  injustice  would 
result  if  this  were  not  the  rule. 


^1 


Sec.  5.] 


BERRY   V.    SAVAGE. 


389 


The  facts  in  this  case,  however,  show  the  necessity  of  con- 
struing the  statute  in  the  manner  above  indicated. 

Had  the  defendants  objected  to  the  reading  of  the  note  in 
evidence,  or  had  they  discovered  the  variance  before  the  jury 
went  out,  there  can  be  no  doubt  that  the  note  would  have  been 
rejected  by  the  court,  and  the  consequence  would  have  been, 
that  the  plaintiff  would  have  been  nonsuited.  The  objection 
ought  strictly  to  have  been  by  defendants  to  receiving  the  note 
in  evidence ;  and  it  perhaps  may  well  be  doubted,  whether  under 
the  circumstances  of  the  case,  the  court  would  not  have  been 
justified  in  charging  the  jury,  that  they  had  a  right  to  consider 
the  note  as  due,  if  they  believed  from  the  face  of  the  note,  that 
the  word  "eighteen"  was  written  by  mistake  for  "eight."  With- 
out intending,  however,  definitely  to  decide  this  point,  we  are 
clearly  of  opinion  that  the  plaintiff  had  a  right  to  submit  to  a 
nonsuit,  when  the  instructions,  were  given. ^  For  not  permitting 
the  plaintiff  to  suffer  a  nonsuit  the  judgment  below  is  reversed 
with  costs  and  judgment  of  nonsuit  rendered  in  this  court.^ 

Judgment  reversed. 


1  Accord :  Hensley  v.  Peek,  13 
Mo.  587. 

2  Day,  C.  J.,  in  Harris  v.  Beam, 
46  la.  118,  "Section  2844  of  the 
Code  provides  that  an  action  may 
be  dismissed  by  the  plaintiff  before 
the  final  submission  of  the  case  to 
the  jury,  or  to  the  court,  when  the 
trial  is  by  the  court. 

"It  is  claimed  by  appellant  that 
the  cause  had  been  finally  submitted, 
and  that  the  time  for  dismissing  the 
cause  had  passed.  In  every  case 
finally  submitted  there  must  be  some 
moment  of  time  in  which  the  condi- 
tion of  being  finally  submitted  is  as- 
sumed. Ordinarily  there  is  no  diffi- 
culty in  determining  whether  or  not 
a  case  has  been  submitted.  But  the 
difficulty  increases  with  approach  to 
the  time  which  marks  the  line  of  de- 
markation  between  a  case  finally  sub- 
mitted and  one  not  finally  submitted, 
and  becomes  greatest  when  that  pre- 
cise time   is   reached.     If   the   last 


word  of  the  court's  charge  to  the 
jury  had  not  been  read,  it  would 
probably  be  conceded  that  no  final 
submission  had  occurred.  But,  as 
the  charge  had  been  fully  read,  it  is 
claimed  nothing  further  remained 
for  court  or  counsel  to  do,  and  that 
the  cause  was  finally  in  the  hands 
of  the  jury.  This  case  presents  the 
question,  perhaps,  in  the  most  diffi- 
cult light  of  which  it  is  susceptible. 
*     *     « 

"A  cause  is  not  finally  submitted 
to  the  jury  when  the  last  word  of 
the  charge  is  read.  In  practice,  the 
jury  are  directed  by  the  court  to  re- 
tire in  charge  of  a  sworn  officer  to 
consider  of  their  verdict,  or  to  enter 
upon  the  consolidation  of  the  case 
without  retiring. 

' '  This  direction  by  the  court  to 
the  jury  to  enter  upon  the  considera- 
tion of  the  case  may  fairly  be  re- 
garded as  the  moment  when  the  final 
submission  of  the  cause  occurs.    An 


390  CONDUCT    OF   THE   TRIAL.  [ChAP.  IV. 

NASHVILLE,  CHATTANOOGA  &  ST.  L.  RY.  v.  SANSOM. 

113  Tennessee,  683.     [1904.] 

Mr.  Justice  Neil.  This  action  was  brought  in  the  Circuit 
Court  of  Grundy  county  to  recover  damages  for  the  alleged 
wrongful  killing  of  John  W.  Sansom,  the  husband  of  the  plain- 
tiff below.  A  jury  was  impaneled  to  try  the  cause,  and  the 
plaintiff  introduced  her  evidence.  After  the  plaintiff  had  intro- 
duced all  of  her  testimony,  the  defendant  demurred  to  the 
evidence,  and  the  plaintiff  joined  issue  thereon.  The  merits  of 
the  demurrer  were  then  argued  before  the  court  by  the  respective 
counsel.  After  this  discussion  was  closed  the  plaintiff  moved 
the  court  for  leave  to  take  a  nonsuit.  This  motion  was  granted, 
and  the  plaintiff's  case  was  accordingly  dismissed,  without  any 
action  upon  the  demurrer.  To  this  judgment  the  defendant 
below,  who  is  the  plaintiff  in  error  here,  excepted,  and  prayed 
an  appeal  to  this  court,  and  has  assigned  errors. 

The  point  raised  here  is  that  under  our  statute  the  motion 
for  leave  to  take  a  nonsuit  came  too  late. 

We  have  three  sections  bearing  upon  the  subject.  They  are 
as  follows : 

Shannon's  Code,  §4689:  "The  plaintiff  may,  at  any  time 
before  the  jury  retires,  take  a  nonsuit  or  dismiss  his  action  as 
to  any  one  or  more  defendants,  but  if  the  defendant  has  pleaded 
a  set-off  or  counterclaim,  he  may  elect  to  proceed  on  such  counter- 
claim in  the  capacity  of  a  plaintiff. ' ' 

Section  4690:  "The  defendant  may,  in  like  manner,  with- 
draw his  counterclaim  at  any  time  before  the  jury  retires  to 
consider  of  their  verdict." 

Section  4691 :  "If  the  trial  is  by  the  court  instead  of  the  jury 
the  nonsuit  or  dismissal  provided  for  in  the  last  two  sections 
shall  be  made  before  the  cause  is  finally  submitted  to  the  court, 
and  not  afterwards." 

The  counsel  for  the  respective  parties  have  argued  the  case 

attorney  cannot  always  tell  whether  cannot  safely  trust  his  case  in  the 

he   can   safely   submit   his   cause   to  hands  of  the  jury,  he  ought,  at  that 

the   jury   upon    the    evidence    intro-  moment,  to  be  permitted  to  dismiss 

duced  until  he  hears  the  charge  of  without  prejudice  to   a   further   ae- 

the  court.     If,  in  his  judgment,  the  tion.     The  statute,  in  our  judgment, 

charge  is  so  adverse  to  him  that  he  does  not  deny  him  that  right." 


I 


Sec.  5.]  nashville,  c.  &  st.  l.  ry.  v.  sansom.  391 

somewhat  at  cross-purposes ;  it  having  been  insisted  for  defend- 
ant in  error  that  the  decision  should  be  governed  by  section 
4689,  and  the  plaintiff  in  error  that  it  should  be  governed  by 
section  4691. 

The  first  theory  advanced  for  the  defendant  in  error  is  that 
the  case  remained  before  the  jury  notwithstanding  the  demurrer 
to  the  evidence,  and  that  the  right  to  take  a  nonsuit  had  not 
been  lost,  because  it  does  not  appear  that  the  jury  had  retired 
from  the  box  at  the  time  the  motion  was  made.  The  theory 
advanced  for  the  plaintiff  in  error  is  that,  when  issue  was  joined 
on  the  demurrer  to  the  evidence  the  case  was  taken  from  the 
jury,  and  at  once  became  a  matter  to  be  tried  before  the  court ; 
and  that,  when  the  argument  was  concluded,  the  case  was 
thereby  finally  submitted  to  the  court,  and  it  was  then  too  late 
to  take  a  nonsuit. 

We  are  of  opinion  that  the  position  of  the  defendant  in  error 
is  untenable.  Reading  sections  4689  and  4690  together,  it  is 
perceived  that  by  the  retiring  of  the  jury  is  meant  the  point 
of  time  when  the  case  is  submitted  to  them  "to  consider  of  their 
verdict."  The  reference  is  to  the  practice  of  the  actual  with- 
drawal of  the  jury  from  the  box  for  the  purpose  indicated. 
Sometimes,  however,  after  the  argument  is  closed,  and  all  in- 
structions have  been  delivered  to  them,  the  jury  are  permitted 
to  make  up  their  verdict  in  the  box  without  an  actual  retiring 
for  the  purpose.  We  are  of  opinion  the  legislature  intended  that 
the  right  to  take  a  nonsuit  in  a  jury  case  should  finally  cease 
when  the  jury  should  properly  begin  to  "consider  of  their 
verdict,"  under  the  law  as  above  stated,  whether  there  should 
be  an  actual  withdrawal  from  the  jury  box  or  not.  The  sub- 
stance of  the  matter  is  that  there  shall  be  no  nonsuit  allowed 
after  a  case  has  been  fully  committed  to  the  consideration  of 
the  jury. 

In  the  case  referred  to  in  the  preceding  paragraph  there  is  a 
duty  devolved  upon  the  jury  to  determine  the  facts  admitted  in 
evidence  before  them,  and  to  apply  thereto  the  instructions  de- 
livered to  them  by  the  court,  for  the  purpose  of  rendering  a 
verdict  thereon.  But  when  there  is  a  demurrer  filed  to  the 
evidence  the  case  is  withdrawn  from  the  jury,  the  court  gives 
them  no  instructions,  and  it  is  not  in  their  power  to  render  a 
verdict,  the  facts  being  fully  ascertained  by  the  joinder  in  de- 
murrer.    It  is  true  the  case,  after  having  been  so  withdrawn. 


392  CONDUCT    OF   THE    TRIAL.  [ChAP.  IV. 

may  be  again  submitted  to  them  for  the  purpose  of  estimating 
damages,  if  the  judge  overrules  the  demurrer;  but  until  it  is  so 
committed  to  them  again  it  is  as  fully  out  of  their  control  as  if 
it  had  never  passed  thereunder.  The  circuit  judge,  on  over- 
ruling the  demurrer,  may  submit  the  case  for  the  assessment 
of  damages  to  the  same  jury  or  to  a  new  jury,  as  he  may  deem 
best.  Of  course,  if  he  should  promptly  decide  the  questions 
arising  on  the  demurrer  against  the  defendant,  he  M^ould  submit 
the  case  again  to  the  same  jury,  unless  that  jury  had  been  pre- 
viously directed  to  withdraw  from  the  box.  However,  the  circuit 
judge  is  not  compelled  to  decide  such  matters  promptly,  but 
may  hold  them  under  advisement,  and  we  suppose,  as  a  matter 
of  fact,  the  judges  do  frequently  hold  them  under  advisement 
for  a  day  or  two,  or  several  days,  for  the  purpose  of  making 
such  investigations  as  they  deem  the  merits  of  the  questions  raised 
require  of  them.  So  it  is  not  the  duty  of  the  circuit  judge  to  de- 
cide the  demurrer  at  once.  He  may  do  so  or  he  may  take  time  for 
consideration.  The  probability  that  time  may  be  required  for 
the  purpose  of  examining  authorities  and  for  reflection,  extend- 
ing over  several  days,  it  may  be,  is  inconsistent  with  the  view 
that  the  jury  previously  impaneled  are  still  attached  to  the 
particular  case,  with  their  functions  merely  suspended,  awaiting 
the  action  of  the  trial  judge.  No  circuit  court  could  be  properly 
conducted  in  this  manner.  There  might  be  at  the  same  time 
several  juries  outstanding  with  suspended  functions,  and  all 
other  work  of  the  court  blocked,  awaiting  the  decision  of  the 
judge  upon  the  demurrer.  We  conclude,  therefore,  that  the 
only  proper  view  of  this  phase  of  the  matter  is  that  the  case  is 
completely  withdrawn  from  the  jury  and  is  submitted  to  the 
court. 

Such  was  the  status  in  the  present  case  when  the  motion  for 
leave  to  take  a  nonsuit  was  made.  The  ease  had  been  withdrawn 
from  the  jury  and  submitted  to  the  court. ^     It  was  then  con- 

1  Philips  against  Echard,  Cro.  Jac.  be  entered  for  the   defendant ;   but 

35:    "And  note,  that  in  a  case  of  the  plaintiff   prayed  that  he  might 

Alderley   v.    Alderley   this   term,    in  be   nonsuited;    and   because   he   had 

debt   upon    an   obligation,   the   case  the  same  term  appeared  and  argued 

being  argued  upon  a  demurrer    (to  by  his  counsel,  and  had  prayed  judg- 

the  pleadings),   the   opinion   of   the  nient,  it  was  adjudged  that  he  could 

court  was  against  the  plaintiff,  and  not  be  nonsuited  the  same  term." 
rule  was  given  that  judgment  should  After    demurrer    sustained    to    a 


Sec.  5.]  meyer  v.  national  biscuit  co.  393 

trolled  by  section  4691.  There  was  a  final  submission  to  the  court 
when  the  argument  on  the  demuiTer  to  the  evidence  was  at  an 
end.  The  section  of  the  Code  last  referred  to  provides  that, 
when  the  case  has  reached  this  stage,  no  nonsuit  shall  be  allowed. 
The  language  is  that  the  nonsuit  shall  be  taken  "before  the 
cause  is  finally  submitted  to  the  court,  and  not  afterwards. ' ' 

It  is  insisted  for  the  plaintiff  that,  even  if  the  court  should 
hold  that  the  time  for  taking  the  nonsuit  had  passed  when  the 
motion  therefor  was  made,  yet  a  discretion  remained  to  the 
court  below  to  grant  or  refuse ;  citing  Cyc.  Vol.  14,  p.  403, 
We  do  not  say  that  a  case  might  not  arise  under  which  the 
court  would  have  such  discretion ;  nor  do  we  hold  that  the  court 
would  have  that  discretion.  It  is  unnecessary  to  pass  upon  the 
point  in  the  present  opinion,  for  the  reason  that  there  is  nothing 
in  the  case  before  us  to  take  it  out  of  the  ordinary,  or  to  move 
the  discretion  of  the  court  for  special  action.  Moreover,  it  is 
observable,  upon  a  perusal  of  the  sections  of  the  Code  quoted, 
when  considered  in  the  light  of  the  common  law  as  it  existed 
when  the  statutes  were  passed  on  which  the  Code  sections  were 
based,  that  it  was  the  purpose  of  the  legislature  to  confine  the 
right  strictly  within  the  limits  laid  down.  We  do  not  think  we 
have,  in  this  case,  the  power  to  pass  the  bounds  fixed.  We  have 
considered  the  authorities  presented  from  other  jurisdictions,  but 
find  them  of  small  use,  since  the  case  must  be  decided  upon  a 
construction  of  our  own  statutes. 

It  results  that  the  judgment  of  the  court  below  must  be 
reversed,  and  the  cause  remanded  for  action  on  the  demurrer, 
and  for  further  proceedings. 


MEYER  V.  NATIONAL  BISCUIT  CO. 

168  Federal  Rep.  906.     [C.  C.  A.  1909.] 

Baker,  Circuit  Judge.  At  the  conclusion  of  the  evidence  in 
this  action  for  damages  on  account  of  personal  injuries  the 
defendant  company  moved  for  a  directed  verdict.  After  argu- 
ment by  counsel  for  the  respective  parties  the  judge  announced 

pleading  and  leave  to  amend,  a  non-       v.    Aetna    Indemnity    Co.,    160    111. 
suit  may  be  taken.     Sherf  v.   Ey.,       App.  140. 
81   Tex.   471;    Alphonso    Const.   Co. 


394  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

his  decision  sustaining  the  motion.  Thereupon  plaintiff  moved 
for  leave  to  take  a  nonsuit.  This  motion  was  overruled,  and 
plaintiff  duly  excepted.  The  judge  then  gave  a  peremptory  in- 
struction in  obedience  to  which  the  jury  rendered  a  verdict  for 
defendant. 

While  it  may  be  true  that  there  is  sufficient  elasticity  in  the 
conformity  act  (§  914,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p. 
684)  ;  Indianapolis  &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  291,  23  L. 
Ed.  898;  Mexican  Central  R.  Co.  v.  Pinkney,  149  U.  S.  194, 
13  Sup.  Ct.  859,  37  L.  Ed.  699)  to  permit  the  United  States  courts 
to  decide  that  the  State  practice  giving  plaintiffs  in  actions  at 
law,  where  jury  trial  has  not  been  waived,  the  right  to  take  non- 
suits at  any  time  before  the  jury  retire  should  not  be  applied 
to  the  disposition  of  a  ease  on  demurrer  to  the  evidence,  or  on 
the  present-day  substitute,  the  motion  for  a  directed  verdict 
(Parks  V.  Southern  R.  Co.,  143  Fed.  276,  74  C.  C.  A.  414), 
nevertheless  we  believe  that  the  long  established  custom  of  the 
United  States  courts  sitting  in  Illinois  of  following  the  Illinois 
practice  respecting  nonsuits  should  be  adhered  to,  at  least  until 
by  duly  promulgated  rules  the  bar  have  been  advised  of  the 
change. 

On  the  facts  of  this  ease  plaintiff  would  have  been  entitled  to 
a  nonsuit  in  the  trial  courts  of  Illinois.  Brown  v.  Lawler,  130 
111.  App.  540 ;  Berry  v.  Savage,  2  Scam.  261 ;  Howe  v.  Harroun, 
17  111.  294 ;  Adams  v.  Shepard,  24  111.  464 ;  Gordon  v.  Goodell, 
34  111.  429. 

In  Wolcott  v.  Studebaker,  34  Fed.  8,  Judge  Dyer,  sitting  in 
the  Circuit  Court  for  the  Northern  District  of  Illinois,  and 
following  precedents  established  by  Judge  Drummond  and  Judge 
Blodgett,  permitted  the  plaintiff  to  discontinue  after  the  motion 
for  a  directed  verdict  had  been  sustained.  In  the  Southern 
District  Judge  Humphrey  ruled  that  plaintiff's  motion  for  leave 
to  take  a  nonsuit  came  too  late,  if  it  was  not  made  until  after 
the  peremptory  instruction  had  been  given  and  the  jury  dis- 
charged from  further  service  in  the  case.  Drummond  v.  Louis- 
ville &  N.  R.  Co.,  109  Fed.  531.  The  practice  is  the  same  in  the 
United  States  courts  in  Indiana.  Gassman  v.  Jarvis,  94  Fed. 
603. 

In  Chicago,  IM.  &  St.  P.  R.  Co.  v.  Metalstaff,  101  Fed.  769, 
41  C.  C.  A.  669,  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  approved  the  practice  of  the  United  States  courts  sitting 


Sec.  5.]  bee  building  co.  v.  dalton.  •  395 

in  Missouri  of  permitting  nonsuits  in  conformity  to  the  practice 
in  the  Missouri  courts. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  the 
direction  to  grant  plaintiff's  motion  for  a  nonsuit.^ 


BEE  BUILDING  CO.  v.  DALTON. 

68  Nebraska,  38,.     [1903.] 

Sullivan,  C.  J.  William  Dalton  sued  the  Bee  Building  Com- 
pany to  recover  damages  for  a  personal  injury.  A  jury  was 
impaneled  to  try  the  issues,  and,  the  plaintiff  having  submitted 
his  evidence  and  rested  his  case,  defendant  moved  the  court  to 
direct  a  verdict  in  its  favor  on  the  ground  that  there  was  neither 
averment  nor  proof  of  an  actionable  wrong.  The  motion  was 
sustained,  but  before  the  peremptory  instruction  could  be  given 
plaintiff  asked  that  the  case  be  dismissed  without  prejudice,  and 
his  request  was  granted.  By  this  proceeding  in  error  the  order 
of  dismissal  is  brought  to  this  court  for  review. 

Section  430  of  the  Code  of  Civil  Procedure  is  as  follows: 
"An  action  may  be  dismissed  without  prejudice  to  a  future 
action:  First — By  the  plaintiff,  before  the  final  submission  of 
the  case  to  the  jury,  or  to  the  court,  where  the  trial  is  by  the 
court.  Second — By  the  court,  where  the  plaintiff  fails  to  appear 
on  the  trial.  Third — By  the  court,  for  want  of  necessary  parties. 
Fourth — By  the  court,  on  the  application  of  some  of  the  defend- 
ants, where  there  are  others  whom  the  plaintiff  fails  to  prosecute 
with  diligence.  Fifth — By  the  court,  for  disobedience  by  the 
plaintiff  of  an  order  concerning  the  proceedings  in  the  action. 

^  Semhle,     Accord:       Gasman     v.  jury,  before  the   case  is  submitted 

Jarvis,  94  Fed.   603 ;   Ey.  v.   Metal-  lor  final  decision, 

staff,  101  Fed.  769 ;  Knight  v.  Ey.,  The  statute  under  consideration  in 

180  Fed.  368.     The  statute  involved  the   Metalstaff   Case,    101   Fed.   769, 

in  the  principal  case  is  as  follows:  is    as    follows:       Mo.    E.    S.    1909, 

Sec.  70,  111.  E.  S.  1913,  Chap.  110:  §  1980:     "The  plaintiff  shall  be  al- 

Every  person  desirous  of  suffering  a  lowed  to  dismiss  his  suit  or  take  a 

nonsuit   shall   be   barred   therefrom,  nonsuit  at  any  time  before  the  same 

unless  he  do  so  before  the  jury  re-  is  finally  submitted  to  the  jury,  or 

tire  from  the  bar,  or  if  the  case  is  to  the  court  sitting  as  a  jury,  or  to 

tried    before    the    court    without    a  the  court,  and  not  afterward. 


396  CONDUCT   OF   THE   TRIAL,  [ChAP.  IV. 

In  all  other  cases,  upon  the  trial  of  the  action,  the  decision  must 
be  upon  the  merits." 

Obviously  the  principal  question  to  be  decided  is  whether 
there  was,  within  the  meaning  of  this  section,  a  final  submission 
of  the  ease  upon  defendant's  motion. ^  The  contention  of  counsel 
for  plaintiff  is  that  the  trial  was  to  the  jury  and  that  there  could 
be  no  submission  of  the  case  until  the  jury  had  complete  authority 
to  deal  with  it.  This  argument  is  plausible,  but  we  can  not 
believe  that  it  is  sound.  It  is  true  a  jury  was  impaneled,  but 
it  is  equally  true  that  the  case  was  tried  by  the  court,  and  not 
by  the  jury.  The  case  was  submitted  upon  an  issue  of  law,  and 
the  determination  of  that  issue  eliminated  the  jury  and  ended 
the  controversy.  After  it  had  been  adjudged  that  the  plaintiff 
had  no  case,  and  that  there  was  no  issue  of  fact  to  be  decided, 
the  direction,  reception  and  recording  of  a  verdict  would  have 
been  mere  ceremonial  acts.  These  acts  would,  we  know,  be  in 
accordance  with  conventional  procedure ;  they  would  satisfy  the 
requirements  of  judicial  formalism,  but  they  would  be  as  useless 
and  idle,  and  almost  as  absurd  as  the  archaic  practice  of  with- 
drawing a  juror  in  order  to  secure  a  continuance.^  To  direct 
the  jury  to  return  a  verdict  in  favor  of  the  defendant  would 
have  been  to  command  the  triers  of  fact  to  ratify  a  decision 
already  made  by  the  court  upon  a  question  of  law.  When  the 
legislature,  in  section  430,  spoke  of  "the  final  submission  of  the 
case  to  the  jury,"  it  must  have  had  in  mind  the  submission  of 
an  issue  of  fact — the  submission  of  a  disputed  question,  which 
might  be  resolved  by  the  jury  in  favor  of  either  party.  In  this 
case  there  was  no  issue  of  fact — the  court  so  decided;  and  if  a 
verdict  had  been  rendered  in  obedience  to  a  peremptory  instruc- 
tion, it  would  have  no  legal  significance;  it  would  not  furnish 
the  basis  for  a  judgment  in  favor  of  defendant.  In  every  such 
case  the  judgment  rests,  not  on  the  decision  of  a  question  of  fact, 
but  wholly  and  exclusively  upon  the  decision  of  a  question  of 
law.  When  it  was  determined  that  the  plaintiff  had  failed  to 
make  a  case  the  court  might,  without  taking  from  the  jury  a 
meaningless  verdict,  have  proceeded  at  once  to  render  judgment 
in  favor  of  defendant.     To  be  sure,  the  procedure  would  not  be 

1  See  Bass  v.  Eublee,  76  Vt.  395,  2  But  see  Bowman  v.  Ry.,  184  Fed. 

ante,  p,  355;  Bartelott  v.  Bank,  119       697. 
111.    259;    Diamond    Rubber    Co.    v. 
Wernicke,  166  Mo.  App.  128. 


m 


Sec.  5.]  bee  building  co.  v.  dalton.  397 

according  to  established  usage,  but  it  would  be  legal  and  logical 
and  in  harmony  with  modern  methods  of  transacting  business. 
It  is,  as  we  view  it,  entirely  clear  that  the  "submission  of  the 
case  to  the  jury"  contemplated  by  the  statute  is  the  submission 
of  an  issue  of  fact;  and  where  there  is  no  such  issue  there  can 
not,  in  any  proper  sense,  be  said  to  be  a  trial  by  jury.  Indeed, 
the  very  essence  of  a  decision  sustaining  a  demurrer  to  evidence 
is  a  denial  of  the  litigant's  claim  that  he  is  entitled  to  a  jury 
trial.  Before  plaintiff  moved  to  dismiss  the  action  without 
prejudice,  his  case  had  been,  not  only  submitted  to  the  court 
upon  a  vital  issue  of  law,  but  that  issue  had  been  decided  against 
him  and  nothing  remained  open  for  contention. 

"Where  a  demurrer  to  the  evidence  is  sustained,"  says  Mr. 
Justice  Brewer  in  St.  Joseph  &  D.  C.  R.  Co.  v.  Dryden,  17  Kan. 
278,  280,  "the  case  is  ready  for  judgment.  It  has  been  finally 
submitted  to  the  court,  and  the  plaintiff  has  no  more  right  to 
dismiss  then  than  he  has  after  a  verdict  is  returned.  The  case 
is  decided,  and  the  plaintiff  has  no  right  to  avoid  that  decision 
by  a  dismissal."  To  permit  a  party  to  dismiss  under  such  cir- 
cumstances is,  in  substance,  to  grant  him  a  new  trial  after  he  has 
been  fairly  defeated  and  to  deprive  his  adversary  of  the  fruits 
of  a  fairly  won  victory.  It  is  contrary  to  good  sense  and  sound 
policy  to  allow  a  party  to  take  his  case  from  one  court  to  another 
until  fortune  favors  him  with  a  judge  who  is  willing  to  accept 
his  view  of  the  law  or  his  construction  of  the  evidence.  "Such 
a  mode  of  proceeding  would,"  as  was  said  in  Conner  v.  Drake, 
1  Ohio  St.  166,  170,  "be  trifling  with  the  court  as  well  as  with 
the  rights  of  defendants."  One  who  is  defending  against  a 
claim  which  he  believes  to  be  unjust  ought  not  to  be  subjected 
to  the  expense  of  litigation  which  settles  nothing.  And  since 
he  is  not  permitted  to  choose  another  forum  when  it  is  discovered 
that  the  court  is  against  him,  it  is  manifestly  unfair  to  give  the 
plaintiff  an  unlimited  freedom  of  choice.  The  tax-paying  public, 
too,  have  rights  which  it  may  be  presumed  the  legislature  took 
into  account  in  adopting  section  430.  It  is,  of  course,  entirely 
proper  that  coui'ts  should  be  maintained  at  public  expense  to 
hear  and  determine  all  controversies  that  may  be  submitted  to 
them,  but  it  is  no  part  of  the  business  of  the  State  in  administer- 
ing justice  to  provide  for  sham  trials,  or  to  maintain  courts  for 
experimental  investigation.  Indeed,  it  would  be  a  reproach  to 
our  judicial  system  to  permit  a  defeated  litigant  to  abandon 


398  CONDUCT    OP   THE   TRIAL.  [ChAP.  IV. 

his  case  and  sue  again,  thus  harassing  the  defendant  and  wasting 
money  raised  by  taxation  for  public  purposes.  Our  conclusion 
is  that  the  court  erred  in  sustaining  plaintiff's  motion  and  this 
conclusion  is,  we  think,  supported  by  State  v.  Scott,  22  Neb.  628 ; 
State  V.  Hazlet,  41  Neb.  257 ;  Beaumont  v.  Herrick,  24  Ohio  St. 
445,  and  other  cases.  Authorities  sustaining  the  position  for 
which  plaintiff  contends  are  numerous  enough,  but  they  fail 
to  distinguish  between  cases  in  which  there  is  an  issue  to  sub- 
mit to  the  jury  and  those  in  which  there  is  not.  Their  reasoning 
is  not  convincing  and  we  decline  to  follow  them. 

A  further  contention  on  behalf  of  plaintiff  is  that  if  the  dis- 
missal was  not  a  matter  of  strict  right  it  was  at  least  a  warrant- 
able exercise  of  a  discretionary  power  vested  in  the  court.  The 
record  does  not  show  that  the  court  undertook  to  exercise  a  dis- 
cretionary power  or  that  the  situation  called  for  the  exercise  of 
such  power.  The  application  was  evidently  made  and  granted 
as  a  demandable  right.  The  plaintiff's  only  reason  for  wishing 
to  dismiss  was  that  the  court  held  his  evidence  to  be  insufficient. 
He  did  not  claim  then,  and  he  does  not  claim  now,  that  he  failed 
to  produce  all  the  evidence  obtainable.  There  is  no  suggestion 
of  surprise,  mistake  or  accident ;  there  is  no  intimation  that  the 
case  submitted  was  not  as  strong  as  it  is  ever  possible  for  plaintiff 
to  make  it.  If  the  dismissal  be  regarded  as  an  exercise  of  judicial 
discretion,  it  must  have  been  claimed  and  allowed  on  the  theory 
that  it  was  right  and  proper  that  plaintiff  should  have  the  judg- 
ment of  another  trial  court  upon  his  case.  Such  a  theory  is,  of 
course,  inadmissible.  *  *  *  The  discretionary  power  of  the 
District  Court  to  set  aside  a  submission  and  receive  further  evi- 
dence, or  to  postpone  the  trial,  or  even  to  permit  a  dismissal 
of  the  case,  is  not  doubted,^  but  there  is  nothing  in  the  present 
record  to  indicate  that  there  was  any  just  ground  for  the  exer- 
cise of  such  power,  or  that  there  was  any  attempt  to  bring  it  into 
action.  The  court  was  evidently  of  the  opinion  that,  the  per- 
emptory instruction  not  having  been  yet  read  to  the  jury,  the 
right  of  plaintiff  to  dismiss  was  absolute.  This  was  an  erroneous 
conception  and  it  led  to  a  wrong  result. 

The  decision  is  reversed  and  the  cause  remanded  for  further 
proceedings. 

3  As  to  the  discretion  of  the  court 
in  such  cases,  see  Nelson  v.  Ey.,  93 
Neb.  154. 


Sec.  5.]  drummond  v,  l.  &  n,  ry.  co.  399 

DRUMMOND  v.  L.  &  N.  RY.  CO. 
109  Federal  Rep.  531.     [C.  C.  1901.] 

On  motion  to  set  aside  verdict  and  allow  plaintiff  to  suffer  a 
nonsuit. 

Humphrey,  District  Judge.  This  is  an  action  brought  by  an 
administrator  for  damages  for  the  death  of  his  intestate.  The 
case  was  tried  by  a  jury.  At  the  close  of  plaintiff's  evidence,  the 
court  gave  a  peremptory  instruction,  directing  the  jury  to  find 
for  the  defendant,  and  discharged  the  jury  from  further  service 
in  the  case.  Thereupon,  and  while  the  jury  still  remained  in 
their  seats,  counsel  for  plaintiff  moved  the  court  that  the  plaintiff 
be  allowed  to  suffer  a  nonsuit.  The  statute  of  Illinois  controls 
the  question.  Central  Transp.  Co.  v.  Pullman's  Palace  Car  Co., 
139  U.  S.  24,  11  Sup.  Ct.  478,  35  L.  Ed.  55 ;  Gassman  v.  Jarvis, 
C.  C,  94  Fed.  603.  The  statute  of  Illinois  reads  as  follows: 
"Every  person  desirous  of  suffering  a  nonsuit  on  trial  shall  be 
barred  therefrom  unless  he  do  so  before  the  jury  retire  from  the 
bar."  §49,  c.  110  Kurd's  Rev.  St.  The  actual  withdrawal  of 
the  jury  from  their  seats  is  not  necessary  to  constitute  a  retire- 
ment, within  the  meaning  of  the  statute.  94  Fed.  603,  supra. 
The  court  has  actually  given  the  instruction,  and  has  discharged 
the  jury,  and  the  record,  including  the  verdict,  is  made  up  by 
the  peremptory  order  of  the  court.  This  constitutes  a  retire- 
ment, within  the  meaning  of  the  statute,^  and  the  plaintiff's 
right  to  suffer  a  nonsuit  is  barred  by  the  statute.  The  motion 
is  overruled. 


LAWRENCE  v.  SHREVE. 

26  Missouri,  492  [1858.] 

Napton,  J.  We  think  the  plaintiff  should  have  been  allowed 
to  take  a  nonsuit  in  this  case.  The  statute  says:  "The  plaintiff 
shall  he  allowed  to  dismiss  his  suit,  or  to  take  a  nonsuit,  at  any 
time  before  the  same  is  finally  submitted  to  the  jury,  or  the  court 
sitting  as  a  jury,  or  to  the  court. ' '    When  a  case  is  tried  by  a  jury 

1  Nonsuit  refused  when  applicn-  'was  being  signed.  Eitehie  v.  Ar- 
tion  was  made  while  directed  verdict       nold,  79  111.  App.  406. 


400  CONDUCT   OF   THE   TRIAL,  [ChAP.  IV. 

it  has  been  the  uniform  construction  of  this  law,  in  practice,  to 
allow  a  party  to  get  the  opinion  of  the  court  upon  the  law  of  his 
case  in  the  form  of  instructions  and  then  withdraw  his  suit  if 
that  opinion  is  unfavorable.  The  same  opportunity  ought  to  be 
afforded  in  cases  where  the  court  is  permitted  to  decide  the  law 
and  try  the  facts  as  a  jury,  if  the  parties  request  a  declaration  of 
the  law  from  the  court. 

In  this  case  the  court  took  the  question  of  law  under  advise- 
ment, and  when  the  decision  was  made  the  whole  case  was  decided 
together,  and  no  opportunity  given  for  a  nonsuit.  The  instruc- 
tion given  for  the  defendant  was  merely  an  instruction  upon  the 
evidence  that  the  plaintiff  was  not  entitled  to  recover;  but  the 
character  of  the  instruction  can  not  vary  the  rights  of  the  parties, 
and  would  rather  seem  to  make  it  more  imperative  on  the  court 
to  give  the  plaintiff  an  opportunity  of  determining  whether  he 
would  proceed  further  with  the  case.  The  plaintiff  can  not  in- 
sist upon  immediate  determination  of  the  law  asked  for  by  the 
instructions  offered;  but  if  the  court  takes  them  under  advise- 
ment, proceeding  on  with  other  business,  it  would  seem  to  be 
reasonable,  where  no  day  is  announced,  or  by  some  rule  of  court 
established  in  which  the  decision  will  be  made  known,  that  the 
parties  or  their  counsel  should  be  informed  when  the  court  is 
ready  to  determine  the  instructions.  Any  other  practice  would 
deprive  plaintiff  of  the  right  given  him  by  the  statute  to  take  a 
nonsuit  at  any  time  before  the  final  submission  of  the  case.^ 

The  judgment  will  be  reversed,  and  the  plaintiff  has  leave  to 
enter  a  nonsuit ;  the  other  judges  concur. 


TOOF  V.  FOLEY. 

87  Iowa,  8.     [1893.] 

This  is  an  action  at  law  based  upon  a  judgment  of  the  Circuit 
Court  of  Shelby  county,  in  the  state  of  Tennessee.  There  was  a 
trial  before  the  court,  a  jury  having  been  waived,  and  a  judg- 

1  For  an  exhaustive  review  of  the  1913,    Chap.    110,    §70),    in    trials 

Missouri  cases,  see  Lawyers  Pub.  Co.  without  a  jury  a  nonsuit  might  be 

V.  Gordon,  173  Mo.  139.  taken   after   finding   announced   and 

Prior  to  the  amendment  in  1907  before  record  entry  made.     Howe  v. 

of  the  Illinois  Practice  Act   (E.  S.  Harroun,  17  111.  494. 


Sec.  5.]  young  and  englefields  case,  401 

ment  was  rendered  for  the  defendant  for  costs.     The  plaintiffs 
appeal. 

RoTHROCK,  J.  It  appears  from  the  record  that  after  the  testi- 
mony was  all  introduced,  and  pending  the  announcement  of  the 
decision  of  the  case  by  the  court,  the  plaintiffs  as-ked  permission 
to  withdraw  the  cause  and  dismiss  their  action.  An  objection  was 
interposed  by  the  defendant,  and  the  right  to  dismiss  the  ease 
was  denied.  There  was  no  error  in  this  ruling.  The  cause  was 
finally  submitted  to  the  court  before  the  motion  to  dismiss  was 
made,  and  it  was  not  only  finally  submitted,  but  the  court  was 
announcing  the  decision.  The  application  to  dismiss  came  too 
late.  Code  (§  2844)  ;  Dunn  v.  Wolf,  81  Iowa,  688.  The  judg- 
ment of  the  District  Court  is  affirmed. ^ 


(b)    Whc7i  set  aside  or  reviewed. 
YOUNG  AND  ENGLEFIELD'S  CASE. 

Godholt,  328.     [1624.] 

Young  brought  an  action  of  trespass  for  entering  his  close, 
etc.,  abutted  upon  one  side  with  Pancras,  and  butted  on  the 
other  side  with  Grayes-Inne-Lane.  Upon  not  guilty  pleaded,  the 
parties  were  at  issue ;  and  the  record  of  Nisi  Prius  was  Graves- 
Inne  Lane ;  and  thereupon  the  party  was  nonsuit.  And  now  it 
was  moved  to  have  a  venire  facias  de  novo.  And  a  case  was  cited 
expresse  in  the  point,  betwixt  Farthing  and  Dupper,  9  Jacobi 
Rot.  1349,  where  in  an  action  upon  the  case  upon  assumpsit,  the 
plea-roll  was  six  weeks,  and  the  record  of  Nisi  Prius  six  months; 
and  the  jury  being  sworn,  the  plaintiffe  was  nonsuit ;  and  a  Venire 
facias  de  novo  was  awarded,  and  the  nonsuit  was  recorded.  Ley 
Chief  Justice.  You  cannot  have  a  new  venire  facias  if  the  non- 
suit be  recorded ;  and  if  the  record  of  Nisi  Prius  varieth  from  the 
record,  then  it  can  be  no  nonsuit,  because  there  is  no  record  upon 

1  A  nonsuit  cannot  be  taken  after  Exeh.  123,  where  in  a  trial  without  a 

case  is  argued  and  taken  under  ad-  jury,  ^  a    nonsuit    was    held    proper 

visenient  by  the  court.     Aetna  Ins.  after     Judge     had     intimated     his 

Co.  V.  Hamilton  County,  79  Fed.  575.  opinion. 
But    see    Robinson    v.    Lawrence,    7 
H.  T.  p.— 26 


402  CONDUCT   OF   THE   TRIAL.  [ChAP.  IV. 

which  the  nonsuit  can  be,  and  the  Nisi  Prius  was  prosecuted  with- 
out warrant.  Judicial  process  are  of  record,  because  they  are  by 
the  award  of  the  court ;  but  if  the  transcript  of  a  record  be  mis- 
taken by  a  dark,  it  issueth  out  by  the  award  of  the  court ;  and  if 
it  vary,  then  it  is  no  record.  The  president  cited  is  direct  in  the 
point :  there  was  a  venire  facias  de  novo ;  but  I  conceive  there  is 
a  difference  where  the  jury  is  sworn,  as  it  is  in  the  president, 
and  then  the  plaintiffe  is  nonsuit;  but  in  our  case  the  plaintiffe 
M^as  nonsuit  before  the  jury  was  sworn.  But  per  Curiam  the  case 
is  the  stronger  to  have  a  new  trial. ^ 


SEARLE  v.  LORD  BARRINGTON. 

2  Strange,  826.     [K.  B.  1729.] 

The  plaintiff  brought  an  action  on  a  bond  entered  into  to  her 
husband  by  one  Wildman,  under  whom  the  defendant  claimed, 
and  the  bond  was  dated  June  24,  1697.  The  defendant  pleaded 
solvit  ad  diem,  and  relied  upon  the  presumption,  it  being  after 
twenty  years ;  to  encounter  which  the  plaintiff  at  the  first  trial  of 
the  cause,  which  was  in  Trin.  10,  Geo.  1,  offered  to  give  in  evi- 
dence the  indorsement  of  interest  under  the  hand  of  the  obligee 
in  the  year  1707,  which  was  three  years  before  the  death  of  the 
obligor ;  but  Pratt,  C.  J.,  before  whom  it  was,  being  of  opinion 
it  ought  not  to  be  given  in  evidence,  from  the  danger  of  letting 
the  obligee  make  indorsements,  which  might  be  done  at  any  time ; 
the  plaintiff  was  nonsuit,  and  afterwards  moved  the  court  against 
the  opinion  of  the  chief  justice ;  and  upon  debate  the  other  three 
judges  were  of  opinion,  it  ought  to  have  been  left  to  the  jury ;  for 
they  might  have  reason  to  believe  it  was  done  with  the  privity 
of  the  obligor,  and  the  constant  practice  is  for  the  obligee  to  in- 
dorse the  payment  of  interest,  and  that  for  the  sake  of  the  obligor, 
who  is  safer  by  such  an  indorsement,  than  by  taking  a  loose 
receipt.  But  an  objection  arising,  that  after  a  nonsuit  the  plain- 
tiff was  out  of  court,  and  could  not  have  a  new  trial,  no  rule  was 
made,  and  she  was  left  to  bring  a  new  action.^ 

1  Accord:      Aequila   Weeks   Case,  son,     Barnes,     317     (25    Geo.     2); 

Cro.  Car.  203.  Forbes   v.    Wale,    1   W.   Blackstone, 

1  Accord:     Lore  v.   Day,  Barnes,  532  (1764)  Semble. 
311    (7  Geo.  2);   Hartley  v.  Atkin- 


Sec.  5,]  buscaul  v.  hogg.  403 

Accordingly  a  new  action  was  brought  and  tried  at  Guildhall 
before  Chief  Justice  Raymond,  who  suffered  the  indorsement  to 
be  read,  and  the  jury  found  for  the  plaintiff.  The  defendant  ten- 
dered a  bill  of  exceptions,  which  was  sealed ;  and  after  judgment 
for  the  plaintiff,  a  writ  of  error  was  brought  in  the  exchequer 
chamber  and  the  bill  of  exceptions  returned  as  parcel  of  the 
record.  And  upon  argument  Chief  Justice  Eyre,  Chief  Baron 
Pengelly,  Denton,  Hale  and  Price  were  of  opinion  to  affirm ;  and 
Carter  and  Comyns  to  reverse.  So  the  judgment  of  B.  R.  was 
affirmed  this  term. 

In  February,  1730,  this  judgment  was  affirmed  in  Parliament, 


BUSCALL  V.  HOGG. 
3  Wilson,  146.     [C.  B.  1770.] 

Trover  for  a  great  many  goods,  to  the  value  of  £700. 

Upon  not  guilty  pleaded,  this  cause  was  tried  at  the  last  assizes 
for  the  county  of  Norfolk,  before  Lord  Chief  Baron  Parker. 
Whereupon  it  appeared  on  the  plaintiffs'  evidence,  by  seven  wit- 
nesses, that  Thickpenny  was  an  inn  keeper ;  and  that  he  not  only 
sold  liquors  to  his  guests  (hospitantihus)  in  his  inn,  but  also  sold 
divers  quantities  of  wine,  rum  and  brandy,  by  four,  five  and  six 
gallons  at  a  time,  to  several  persons  living  two  and  three  miles 
distant  from  his  inn,  for  them  to  retail  out  and  sell  again,  and 
had  done  thus  for  some  years;  whereupon  it  was  insisted  by  the 
counsel  for  the  plaintiffs,  at  the  trial,  that  this  sort  of  trading 
by  an  inn  keeper,  made  him  liable  to  a  commission  of  bankrupt, 
but  the  Chief  Baron,  without  hearing  any  other  evidence,  was  of 
a  different  opinion ;  and  ordered  the  plaintiffs  to  be  nonsuited, 
with  leave  to  move  the  court  for  a  new  trial,  without  costs,  in 
case  he  was  mistaken  in  his  opinion. 

And  now  upon  the  motion  of  Sergeants  Whitaker  and  Forster, 
to  set  aside  the  nonsuit,  the  court  was  clear  of  opinion  that  the 
plaintiff  ought  not  to  have  been  called,  but  the  matter  ought  to 
have  been  more  fully  sifted  and  gone  into  at  the  trial;  that  it 
not  appearing  to  the  court  here  what  proportion  Thickpenny 's 
trade  in  his  inn  bore  to  his  trading  abroad  and  out  of  doors,  they 
could  not  judge  whether  he  was  liable  to  be  a  bankrupt  or  not ; 


404  CONDUCT   OF   THE   TRIAL..  [C  lAP.  IV. 

and  therefore  they  set  aside  the  nonsuit,  and  granted  a  new  trial 
without  costs. ^ 


COSSAR  V.  REED. 
17  Q.  B.  (N.  8.)  540.      [1851.] 

Error  from  the  Borough  Court  of  Kinston  upon  Hull.  The 
action  in  the  court  below  was  debt  for  goods  sold  and  delivered 
within  the  jurisdiction  of  the  court,  and  on  accounts  there  stated. 
Plea:  Never  indebted.  Issue  thereon.  The  record  set  forth  the 
venire,  the  coming  of  the  jury  and  their  being  sworn,  and  that 
the  jury,  "after  evidence  being  given  to  them,  thereupon  with- 
drew from  the  box  here  to  consider  of  the  verdict  to  be  by  them 
given  of  and  upon  the  premises;  and,  after  they  had  considered 
thereof,  and  agreed  amongst  themselves,  they  returned  to  the 
box  to  give  their  verdict  in  that  behalf.  Whereupon  the  plaint- 
iffs, being  solemnly  called,  came  not ;  nor  do  they  further  prose- 
cute their  writ  against  the  defendant.  Therefore  it  is  consid- 
ered, ' '  etc.    Judgment  of  nonsuit. 

Tacked  to  the  record  was  a  bill  of  exceptions,  which  set  forth 
at  length  the  evidence  given  on  the  trial  before  the  Recorder,  as 
judge  of  the  Borough  Court;  objection  by  the  defendant  that 
the  evidence  was  of  a  cause  of  action  not  accruing  within  the 
jurisdiction;  contention  by  the  plaintiff's  counsel,  that  there  was 
evidence  on  each  count ;  and  ruling  of  the  judge  that  there  was 
no  evidence  in  support  of  either  count.  "And  the  said  judge  of 
the  court  aforesaid,  having  so  declared  his  opinion  and  decision 
in  favor  of  the  said  defendant  on  the  issue  aforesaid  with  respect 

1  Accord:  Rockham  v.  JessTip,  3  have  nominal  damages  only ;  but  you 
Wil.  332  (C.  B.  1772)  ;  Sadler  v.  did  not  choose  to  trust  your  case 
Evans,  4  Burrow,  1985  (B.  E.  1766)  ;  with  the  jury.  If  there  were  a  mis- 
Harris  V.  Batterly,  2  Cowper,  433  direction,  you  should  have  abided 
(B.  R.  1776)  ;  Brine  v.  Rawlings,  7  the  verdict,  and  have  reserved  the 
East,  279  (B.  R.  1806);  Ward  v.  objection  for  a  motion  for  a  new 
Mason,  9  Price  291  (1821)  ;  Law-  trial.  I  believe  this  has  never  been 
rence,  J.,  in  Butler  v.  Dorant,  3  done,  that  a  counsel  shall  lie  by, 
Taunton  229  (1810)  on  motion  for  a  until  he  hears  the  opinion  of  the 
rule  nisi  to  set  aside  a  nonsuit  for  .Tudge  at  nisi  prius,  and  that  if  he 
misdirection:  "His  Lordship  did  thereupon  chooses  to  be  nonsuited, 
not  say  you  should  be  nonsuited,  he  he  shall  come  to  court  to  set  aside 
directed   the   jury   that   you   should  his  own  act. ' ' 


II 


Sec.  5.]  cossar  v.  reed.  405 

to  both  counts,  nonsuited  the  plaintiffs.  Whereupon  the  counsel 
for  the  plaintiffs,  conceiving  that  such  opinions  and  decisions  of 
the  said  judge  were  erroneous  and  bad  in  law,  made  his  excep- 
tions to  the  said  opinions,  decisions  and  judgments  of  the  said 
judge."  It  then  stated  the  tendering  and  sealing  of  the  bill  of 
exceptions. 

Lord  Campbell,  C.  J.,  on  a  subsequent  day  in  this  term  (Nov. 
21)  delivered  judgment. 

We  are  of  opinion  that,  if  upon  the  trial  of  a  cause  the  judge 
directs  a  nonsuit,  and  the  plaintiff  does  not  appear  when  called, 
he  cannot  tender  a  bill  of  exceptions  and  bring  a  writ  of  error, 
assigning  for  error  that  the  judge  improperly  directed  the  non- 
suit. The  proper  course  would  have  been  for  the  plaintiff,  when 
called,  to  have  appeared  and  required  the  judge  to  direct  the  jury 
in  point  of  law  in  his  favor.  Upon  the  judge  refusing  to  do  so, 
or  refusing  to  permit  him  to  appear,  he  might  have  tendered  a 
bill  of  exceptions  and  brought  a  writ  of  error.  He  had  a  clear 
right,  if  he  had  so  thought  fit,  to  have  the  issues  joined  submitted 
to  the  jury,  and  to  tender  a  bill  of  exceptions  upon  the  judge's 
direction  in  point  of  law ;  and,  if  the  judge  refused  to  permit  him 
to  appear,  and  insisted  on  nonsuiting  him  against  his  will,  this 
would  be  a  miscarriage  for  which  a  bill  of  exceptions  would  lie. 
But,  if,  acquiescing  in  the  nonsuit,  he  does  not  appear,  and  no 
direction  in  point  of  law  is  given  to  the  jury,  and  no  verdict  is 
found,  we  conceive  that  the  supposition  of  a  bill  of  exceptions  is 
an  absurdity.  When  the  plaintiff  has  made  default  and  aban- 
doned his  suit,  he  is  not  in  court,  and  it  is  impossible  that  he 
should  tender  a  bill  of  exceptions.  His  only  remedy  is  an  applica- 
tion to  the  court  from  which  the  record  comes,  to  set  aside  the 
nonsuit  and  grant  a  new  trial.  In  the  vast  majority  of  cases 
ample  justice  is  thus  done  to  the  plaintiff;  but,  if  he  distrusts 
the  court  from  which  the  record  comes,  and  wisTies  to  put  the 
question  of  law  upon  the  record,  his  course  is  to  appear  and  to 
insist  on  the  judge  directing  the  jury,  and  on  the  jury  finding  a 
verdict.  That  he  is  entitled  to  do  so  is  clearly  established  by 
Minchin  v.  Clement,  1  B.  &  Aid.  252,  and  various  other  author- 
ities collected  in  note  1  to  Mounson  v.  Redshaw,  1  Wms.  Saund. 
195d,  e.  6th  ed.  A  writ  of  error  may  be  brought  where  there  has 
been  judgment  upon  a  nonsuit ;  but  this  is  for  some  error  subse- 
quent to  the  nonsuit,  which  can  so  rarely  occur  that  such  a  writ 
of  error  is  considered  as  almost  necessarily  brought  for  delay. 


406  CONDUCT   OP   THE   TRIAL.  [ChAP.    IV. 

In  Evans  v.  Swete,  2  Bing.  326,  328,  Best,  C.  J.,  says:  ''It  is 
difficult,  indeed,  to  conceive  how  error  can  lie  after  a  nonsuit, 
except  for  some  mistake  in  entering  up  the  judgment;  error  on 
the  original  record  cannot  be  complained  of  when  the  plaintiff 
has  abandoned  all  his  proceedings." 

I\Ir.  Compton  placed  all  his  reliance  on  Strother  v.  Hutchinson, 
2  New  Ca.  83,  an  instance  (and  the  only  one  to  be  found  in  the 
books)  of  a  bill  of  exceptions  on  a  nonsuit.  But,  when  examined, 
it  will  be  found  to  be  no  authority  for  him,  as  the  language  of 
the  judges  must  be  construed  with  reference  to  the  proceedings 
before  them.  There  the  plaintiff,  instead  of  acquiescing  in  the 
nonsuit,  appeared  when  called ;  and  the  very  exception  taken  was 
that  the  judge  still  insisted  on  nonsuiting  him,  instead  of  leaving 
the  issue  to  the  jury  with  a  direction  in  point  of  law  how  it  was 
to  be  found.  The  bill  of  exceptions  alleged  that,  though  the  said 
plaintiff,  ' '  the  said  William  John  Strother  did  then  and  there  by 
his  said  attorney  insist  upon  the  cause  being  left  to  the  jury,  and 
did  offer  to  abide  their  determination,  and  did  appear  on  his 
being  called,  and  did  refuse  to  consent  to  a  nonsuit ;  yet  the  said 
sheriff"  "did  then  and  there"  "order  the  said  William  John 
Strother  to  be  called ;  and  did  then  and  there  declare  that  the 
said  AVilliam  John  Strother  was  nonsuited ;  and  the  jury  there- 
upon did  not  give  a  verdict;  whereupon  the  said  William  John 
Strother,  by  his  said  attorney,  did  then  and  there  except  to  the 
opinion  of  the  said  sheriff,  and  did  insist "  "  the  illegality  of  non- 
suiting him,  the  said  William  John  Strother,  without  his  consent, 
and  contrary  to  his  wish."  Tindall,  C.  J.,  says:  "It  is  then 
objected  that  the  judge's  directing  a  nonsuit  cannot  be  the  sub- 
ject of  a  bill  of  exceptions.  I  think,  however,  that  such  a  direc- 
tion falls  within  the  principle  on  which  that  remedy  has  been  pro- 
vided for  errors  in  judgment  at  the  trial."  But  this  must  be 
understood  of  directing  a  nonsuit  when  the  plaintiff  has  ap 
peared,  and  refused  to  be  nonsuited.  Being  still  in  court  and 
desirous  to  prosecute  his  suit,  there  is  no  difficulty  in  supposing 
that  he  tenders  a  bill  of  exceptions.  In  the  present  case  there  is 
the  following  statement  in  the  record  of  the  judgment :  "Where- 
upon the  plaintiffs,  being  solemnly  called,  came  not ;  nor  do  they 
further  prosecute  their  suit  against  the  defendant :  Therefore 
it  is  considered  that  the  plaintiff  take  nothing  by  his  writ : ' '  and 
the  bill  of  exceptions  appended  to  the  judgment  well  shows  that 
the  plaintiff  acquiesced  in  the  nonsuit,  and  never  offered  to  ap- 


Sec.  5.]  Lombard  v.  cheever.  407 

pear.  The  said  judge  then  declared  it  to  be  his  opinion  and  held 
and  affirmed  that  there  was  no  evidence  of  an  account  stated 
within  the  said  jurisdiction;  and  the  said  judge,  "having  so  de- 
clared his  opinion  and  decision  in  favor  of  the  said  defendant," 
' '  nonsuited  the  plaintiffs.  Whereupon  the  counsel  for  the  plaint- 
iffs" made  his  exceptions,  etc.  No  opposition  is  offered  to  the 
nonsuit;  and  no  bill  of  exceptions  is  alleged  to  have  been  ten- 
dered till  the  plaintiffs,  when  called,  had  declined  to  come  forth 
and  were  in  court  no  longer.  Strother  v.  Hutchinson,  4  New  Ca. 
83,  therefore,  is  not  an  authority  in  point. 

We  have  only  further  to  observe  that  extreme  inconvenience 
would  follow  if  a  practice  were  introduced  of  tendering  a  bill 
of  exceptions  upon  the  judge's  direction  in  point  of  law  without 
a  finding  of  the  issue  by  the  jury ;  for  the  record  might  thus  be 
carried  into  the  House  of  Lords,  and,  after  a  decision  against  the 
plaintiff  by  the  court  of  last  resort,  a  nonsuit  merely  would  be 
confirmed,  and  he  would  be  at  liberty  to  commence  a  fresh  action 
for  the  same  cause. 

Upon  the  whole,  we  are  of  opinion  that  no  error  is  assigned  in 
the  present  case  of  which  we  can  take  notice ;  and  that  the  de- 
fendant in  error  is  entitled  to  our  judgment. 

Judgment  affirmed.^ 


LOMBARD  V.  CHEEVER. 

3  Gilman,  469.     [1846.] 

Replevin  in  the  Marshall  Circuit  Court,  brought  by  the  ap- 
pellant against  the  appellees,  at  the  October  term,  1846,  and 
heard  before  the  Hon.  John  D.  Caton.  The  plaintiff,  on  the  ex- 
clusion of  certain  evidence,  consented  that  a  nonsuit  should  be 
entered  with  leave  to  move  to  set  it  aside,  and  for  a  new  trial, 
but  the  motion  was  overruled,  and  the  plaintiff  excepted. 

The  evidence  offered  and  excluded  by  the  court  below  is  stated 
in  the  opinion  of  the  court. 

Opinion  of  the  court  by  Thomas,  J.  This  case  comes  before  us 
in  such  a  shape  as  to  close  our  eyes  to  the  errors  alleged  to  exist 

1  Accord :  Francisco  v.  C.  &  A. 
Ry.  Co.,  149  Fed.  354  and  eases 
there  cited. 


I 


408  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

in  the  record  and  proceedings  of  the  court  below.  The  plaintiff, 
in  that  court,  (the  appellant  in  this)  chose  to  submit  to  a  volun- 
tary nonsuit,  and  consequently  can  not  complain  of  the  judgment 
thereon  here.    Barnes  v.  Barber,  1  Gilm.  404-5. 

Nor  does  the  fact  that  the  nonsuit  was  taken,  with  leave  to  the 
plaintiff  to  move  to  set  it  aside,  vary  the  result.  That  reservation 
secured  to  him  only  the  privilege,  which  without  it,  he  might 
not  have  exercised,  of  seeking  in  the  circuit  court,  to  avert  the 
consequences,  either  of  the  erroneous  decisions  of  that  court,  as 
to  the  sufficiency  of  his  evidence  to  make  out  his  case,  or  his  own 
hastiness  or  improvidence  in  acting  with  reference  to  such  erron- 
eous decisions,  in  suffering  a  nonsuit.  But  the  remedy  for  the 
evils  growing  out  of  any  such  error  of  the  court,  or  improvidence 
of  the  plaintiff,  could  be  sought  for  only  in  the  mode  referred  to, 
in  the  court,  out  of  whose  judgment  such  evils  grew.  The  right 
to  seek  such  remedy  expired  with  the  unsuccessful  effort  made  to 
obtain  it.  Failing  to  satisfy  the  Circuit  Court  of  his  right  to  have 
the  nonsuit  set  aside,  all  investigation  on  that  subject  is  forever 
closed.  It  is  not  the  order  of  the  court  overruling  the  motion  to 
set  aside  the  nonsuit  that  is  appealed  from ;  that,  like  the  overrul- 
ing of  a  motion  for  a  new  trial,  where  a  nonsuit  has  been  found 
by  a  jury,  is  but,  an  interlocutory  order;  but,  as  in  that  case,  it 
is  the  judgment  rendered  upon  the  verdict,  so  in  this,  it  is  the 
judgment  rendered  upon  the  nonsuit,  that  is  brought  by  appeal 
into  this  court.  The  fact,  then,  that  the  judgment  complained 
of  was  the  result  of  the  plaintiff's  own  volition,  and  not  in 
invitum  as  to  him,  still  remains  as  an  insuperable  obstacle  in  the 
way  of  his  demanding  a  revision  by  this  court,  of  any  of  the 
supposed  erroneous  decisions  of  the  Circuit  Court.^ 


HOWELL  V.  PITMAN. 

5  Mo,  246.      [1838.] 

Edwards,  J.  Howell  brought  an  action  of  ejectment  against 
Pitman  for  a  tract  of  land  in  St.  Charles  county.  Pitman 
pleaded  the  general  issue.  On  the  trial  a  witness  on  the  part  of 
the  plaintiff  proved  that  he  had  surveyed  the  land  in  dispute,  in 

1  See  also  Eankin  v.  Curtinius,  12 
ni.  334. 


Sec.  5.]  howell  v.  pitman.  409 

conformity  to  an  order  in  writing  from  the  surveyor  general  at 
St.  Louis ;  which  authority  he  returned  to  that  office  with  his  sur- 
vey. Defendant's  counsel  moved  the  court  to  exclude  from  the 
jury  all  evidence,  parol  and  written,  in  relation  to  the  survey, 
unless  a  copy  of  that  order  from  the  surveyor  general  should  be 
produced;  and  this  motion  was  sustained  by  the  court.  After 
the  exclusion  of  the  copy  of  the  survey,  and  the  evidence  in  rela- 
tion thereto,  the  plaintiff  excepted  to  the  opinion  of  the  court, 
and  suffered  a  nonsuit ;  and  now  brings  his  writ  of  error  to  re- 
verse the  decision  of  the  Circuit  Court. 

But  one  question  arises  on  this  state  of  the  case,  that  is,  will 
a  writ  of  error  lie  on  a  judgment  of  nonsuit  ?  By  the  first  sec- 
tion of  the  act  regulating  practice  in  the  Supreme  Court,  it  is 
provided  that  "writs  of  error  upon  any  final  judgment  or  de- 
cision of  any  Circuit  Court,  in  all  cases,  are  writs  of  right." 
Has  there  been  a  final  judgment  or  decision  of  the  Circuit  Court 
on  this  case  ?  A  nonsuit,  voluntarily  suffered  by  the  party  him- 
self, is  not  a  final  judgment  or  a  decision  of  the  court,  but  is  a 
mere  act  of  the  party  himself,  and  must  always  be  voluntary, 
that  is,  by  the  plaintiff's  counsel  submitting  to  the  same,  or  not 
appearing ;  and  in  no  case  can  it  be  adverse,  or  without  implied 
consent,  3  Chit.  Prac.  910,  and  therefore  it  will  not  form  the 
basis  of  a  writ  of  error. 

The  correct  practice  now  seems  to  be  this :  the  party  suffering 
a  nonsuit  must  move  the  court  to  set  it  aside,  and  in  discussing 
this  motion  all  the  points  involved  in  the  case  will  be  brought 
under  the  review  of  the  court.  If  the  motion  to  set  aside  the  non- 
suit be  overruled,  then  the  party  may  take  his  bill  of  exceptions, 
reserving  the  points  and  the  evidence,  and  may  sue  out  his  writ 
of  error  on  the  decision  of  the  court  in  overruling  the  motion  to 
set  aside  the  nonsuit.  The  decision  of  the  Circuit  Court,  by  which 
this  motion  is  overruled,  has  been  considered  a  decision  finally 
disposing  of  the  cause ;  and  therefore,  from  this  decision,  the  writ 
of  error  will  lie.^  English  v.  Mullanphy,  1  Mo.  R.  780 ;  Collins  v. 
Bowman,  2  ]\Io.  R.  195 ;  Johnson  v.  Strader  &  Thompson,  3  Mo. 
R.  359.  The  judgment  of  the  Circuit  court  ought,  therefore,  to 
be  affirmed,  and  the  other  judges  concurring,  it  is  affirmed. 

1  But  under  this  practice   a   non-  eludes  a  recovery.     Green  Co.  Bank 

suit   is   regarded    as   voluntary    and  v.  Gray,  146  Mo.  568  and  eases  there 

not    reviewable    if    taken    before    a  cited ;  Lewis  v.  Mining  Co.,  199  Mo. 

ruling  is  actually  made  which  pre-  463. 


410  CONDUCT   OP   THE   TRIAL.  [ChAP^,  IV. 

CENTRAL  TRANSP.  CO.  v.  PULLMAN'S  CAR  CO. 

139  U.  S.  24.      [1890.] 

Mr.  Justice  Gray.  The  principal  defense  in  this  case,  duly 
made  by  the  defendant,  by  formal  plea,  as  well  as  by  objection  to 
the  plaintiff's  evidence,  and  sustained  by  the  Circuit  Court,  was 
that  the  indenture  of  lease  sued  on  was  void  in  law,  because  be- 
yond the  powers  of  each  of  the  corporations  by  and  between 
whom  it  was  made. 

There  is  a  preliminary  question  of  practice,  arising  out  of  the 
manner  in  which  the  case  was  disposed  of  below,  which  is  deserv- 
ing of  notice,  although  not  mentioned  by  counsel  in  argument. 

The  Circuit  Court,  in  ordering  a  nonsuit  because  in  its  opinion 
the  evidence  offered  by  the  plaintiff  was  insufficient  in  law  to 
maintain  the  action,  acted  in  accordance  with  the  statute  of  Penn- 
sylvania, which  provides  that  "it  shall  be  lawful  for  the  judge 
presiding  at  the  trial  to  order  a  judgment  of  nonsuit  to  be 
entered,  if  in  his  opinion  the  plaintiff  shall  have  given  no  such 
evidence  as  in  law  is  sufficient  to  maintain  the  action,  with  leave, 
nevertheless,  to  move  the  court  in  banc  to  set  aside  such  judg- 
ment of  nonsuit ;  and  in  case  the  said  court  in  banc  shall  refuse 
to  set  aside  the  nonsuit,  the  plaintiff  may  remove  the  record  by 
writ  of  error  into  the  Supreme  Court  for  revision  and  review,  in 
like  manner  and  with  like  effect  as  he  might  remove  a  judgment 
rendered  against  him  upon  a  demurrer  to  evidence."  Penn. 
Stats.  March  11,  1836,  Chap.  34,  §  7;  March  11,  1875,  Chap.  8;  2 
Purdon's  Digest  (11th  ed.)  1362,  1363.  Under  that  statute,  as 
expounded  by  Chief  Justice  Gibson,  the  judge  can  order  a  non- 
suit only  when  all  the  evidence  introduced,  with  every  inference 
of  fact  that  a  jury  might  draw  from  it  in  favor  of  the  plaintiff, 
appears  to  be  insufficient  in  matter  of  law  to  sustain  a  verdict ; 
and  the  defendant's  motion  for  a  nonsuit  is  equivalent  to  a  de- 
murrer to  evidence,  differing  only  in  the  judgment  thereon  not 
being  a  final  determination  of  the  rights  of  the  parties,  for  if  it 
is  in  favor  of  the  plaintiff  the  case  must  be  submitted  to  the  jury, 
and  if  in  favor  of  the  defendant  it  is  no  bar  to  a  new  action. 
Smyth  v.  Craig,  3  Watts  &  Sergeant,  14 ;  Fleming  v.  Insurance 
Co.,  Brightl}^  102 ;  Bournonville  v.  Goodall,  10  Penn.  St.  133.^ 

1  Bell,  J.  In  Bournonville  v.  supposed  conclusiveness  of  the  judg- 
Goodall,  10  Pa.  St.  133:  "The  de-  ment  of  nonsuit  ordered  by  the 
fendant's   plea   is   founded    on   the       judge  on  the  trial  of  the  first  scire 


Sec.  5.]       cent,  trans,  co.  v.  Pullman's  car  co. 


411 


It  is  true  that  a  plaintiff  who  appears  by  the  record  to  have 
voluntarily  become  nonsuit,  cannot  sue  out  a  Avrit  of  error.  United 
States  V.  Evans,  5  Cranch,  280 ;  Evans  v.  Phillips,  4  Wheat.  73 ; 
Cossar  v.  Reed,  17  Q.  B.  540.  But  in  the  case  of  a  compulsory 
nonsuit  it  is  otherwise;  and  a  plaintiff,  against  whom  a  judg- 
ment of  nonsuit  has  been  rendered  without  his  consent  and 
against  his  objection,  is  entitled  to  relief  by  writ  of  error.  El- 
more V.  Grymes,  1  Pet.  469 ;  Strother  v.  Hutchinson,  4  Bing.  N. 
C.  83 ;  S.  C.  5  Scott,  346 ;  6  Bowling,  238 ;  Voorhees  v.  Coombs, 
4  Vroom,  482. 

There  are  many  cases  in  the  books,  in  which  this  court  has 
held  that  a  court  of  the  United  States  has  no  power  to  order  a 
nonsuit  without  the  plaintiff's  acquiescence.  Elmore  v.  Grymes, 
above  cited ;  Crane  v.  Morris,  6  Pet.  598,  609 ;  Silsby  v.  Foote,  14 
How.  218 ;  Castle  v.  Bullard,  23  How.  172,  183.  Yet,  instead  of 
overruling,  upon  that  ground  alone,  exceptions  to  a  refusal  to 
order  a  nonsuit,  this  court,  more  than  once,  has  considered  and 
determined  questions  of  law  upon  the  decision  of  which  the 
nonsuit  was  refused  in  the  court  below.  Crane  v.  Morris  and 
Castle  V.  Bullard,  above  cited. 

The  difference  between  a  motion  to  order  a  nonsuit  of  the  plain- 
tiff and  a  motion  to  direct  a  verdict  for  the  defendant  is,  as 
observed  by  Mr.  Justice  Field,  delivering  a  recent  opinion  of 


facias,  in  pursuance  of  the  7th  sec- 
tion of  the  act  of  March  11,  1836. 
In  its  legal  effect,  as  a  flat  bar  to 
further  proceedings  under  the  me- 
chanic 's  lien  law,  it  is  thought  to 
be  analogous  to  a  judgment  rendered 
upon  a  demurrer  to  the  plaintiff's 
evidence;  and,  indeed,  in  Smythe  v. 
Craige,  3  W.  &  S.  18,  it  was  said 
a  prayer  for  a  nonsuit,  under  the 
statute,  is  effectively  a  demurrer  to 
evidence,  except  that  the  judge  can- 
not give  judgment  for  the  defend- 
ant, though  he  should  think  the  non- 
suit not  grantable.  But  this  very 
difference  shows  that  the  similarity 
between  the  prayer  and  the  demurrer 
regards  only  the  inferences  that  may 
be  drawn  from  the  evidence,  and  not 
the  effect  of  the  judgment  conse- 
quent upon   it.      This   distinction   is 


luminously  pointed  out  by  the 
learned  judge  who  first  brought  to 
notice  the  partial  similitudes  in  an 
opinion  delivered  at  Nisi  Prius,  in 
the  case  of  Fleming  v.  Insurance  Co. 
of  Penna.,  6  Pa.  Law  J.  373.  The 
reasoning  of  the  Chief  Justice  there, 
demonstrates  that  the  legislature  en- 
tertained no  intent  to  confer  upon 
the  statutory  nonsuit  a  quality  un- 
known to  the  common  law,  and 
which  might  be  productive  of  great 
harshness  and  injustice.  It  is  not 
worth  while  to  repeat  it  here,  for, 
being  adopted  as  illustrative  of  the 
conclusion  arrived  at  by  the  whole 
court,  for  the  information  of  the 
profession,  its  publication,  in  connec- 
tion with  this  determination,  will  be 
directed. ' ' 


I 


'jliil' 


412  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

this  court,  "rather  a  matter  of  form  than  of  substance,  except 
(that)  in  the  case  of  a  nonsuit  a  new  action  may  be  brought, 
whereas  in  the  case  of  a  verdict  the  action  is  ended,  unless  a  nev» 
trial  be  granted,  either  upon  motion  or  upon  appeal."  Oscanyan 
V.  Arms  Co.,  103  U.  S.  261,  264. 

Whether  a  defendant  in  an  action  at  law  may  present  in  the 
one  form  or  in  the  other,  or  by  demurrer  to  the  evidence,  the 
defense  that  the  plaintiff,  upon  his  own  case,  shows  no  cause  of 
action,  is  a  question  of  "practice,  pleadings,  and  forms  and  modes 
of  proceeding,"  as  to  which  the  courts  of  the  United  States 
are  now  required  by  the  act  of  Congress  of  June  1,  1872,  Chap. 
255,  §  5  (17  Stat.  197),  re-enacted  in  §  914  of  the  Revised 
Statutes,  to  conform,  as  near  as  may  be,  to  those  existing  in  the 
courts  of  the  state  within  which  the  trial  is  had.  Sawin  v.  Kenny, 
93  U.  S.  289 ;  ex  parte  Boyd,  105  U.  S.  647 ;  Chateaugay  Co.,  peti- 
tioner, 128  U.  S.  544;  Glenn  v.  Sumner,  132  U.  S.  152,  156. 

It  is  doubtless  within  the  authority  of  the  presiding  judge,  and 
is  often  more  convenient,  in  order  to  prevent  the  case  from  being 
brought  up  in  such  a  form  that  the  judgment  of  the  court  of 
last  resort  will  not  finally  determine  the  rights  of  the  parties 
to  adopt  the  course  of  directing  a  verdict  for  the  defendant  and 
entering  judgment  thereon. 

But  the  judgment  of  nonsuit,  being  a  final  judgment  disposing 
of  the  particular  case  and  rendered  upon  a  ruling  in  matter  of 
law  duly  excepted  to  by  the  plaintiff,  is  subject  to  be  reviewed  in 
this  court  by  Avrit  of  error. 

It  was  therefore  rightly  assumed  by  the  counsel  of  both  parties 
at  the  argument  that  the  only  question  to  be  determined  is  of  the 
correctness  of  the  ruling  sustaining  the  defense  of  ultra  vires 
independently  of  the  form  in  which  that  question  was  presented 
and  disposed  of. 


Section  6.     Argument  of  Counsel. 
DOUGLASS  V.  HILL. 

29  Kansas,  527.      [1883.] 

Brew^er,  J.  This  was  an  action  brought  by  the  defendant  in 
error,  plaintiff  below,  to  recover  the  value  of  a  certain  stock  of 
goods  claimed  to  have  been  taken  and  converted  to  his  own  use 
by  defendant.    Prior  to  May  2,  1881,  the  goods  belonged  to  and 


Sec.  6.]  douglass  v.  hill.  413 

were  in  the  possession  of  one  J.  L.  Bowlden.  On  that  day  plain- 
tiff claims  to  have  purchased  them.  Thereafter  the  defendant,  as 
sheriff  of  Butler  county,  seized  them  by  virtue  of  a  writ  of  at- 
tachment issued  against  said  Bowlden.  Therefore  the  question 
in  the  case  was,  whether  the  goods  at  the  time  of  the  levy  by  the 
sheriff  were  the  property  of  said  Bowlden ;  and  this  depends  on 
the  further  question  whether  the  sale  to  plaintiff  was  valid,  or 
not.  The  dealings  with  Bowlden  were  had  by  Edwin  Hill,  the 
husband  of  plaintiff,  who  she  claimed  was  acting  as  her  agent. 
With  this  general  statement  of  the  case,  we  pass  to  the  considera- 
tion of  the  particular  questions  presented.  The  action  was  tried 
before  a  jury,  and  at  its  close  defendant  claimed  the  right  to 
argue  the  questions  of  fact  to  the  jury,  but  the  court  refused  to 
permit  any  argument.  This  ruling  is  alleged  as  the  principal 
ground  for  reversal.  The  court  in  its  instructions  submitted  to 
the  jury  a  question  of  fact  in  these  words:  "If  you  find  from 
the  evidence  that  at  the  time  of  the  conversion  of  the  property 
the  plaintiff  was  the  owner  of  it,  it  will  be  your  duty  to  find  a 
verdict  in  her  favor  for  the  value  of  the  property."  Counsel 
insist  that  wherever  a  question  of  fact  is  submitted  to  a  jury, 
counsel  has  a  right  to  be  heard  in  argument  thereon ;  and  while 
it  is  conceded  that  the  court  has  a  discretion  in  restricting  the 
time  to  be  occupied  in  such  argument,  claim  that  to  refuse  any 
argument  is  a  denial  of  an  absolute  right,  and  manifest  error.  As 
a  general  proposition  we  think  this  is  unquestionably  true.  A 
party  to  a  law  suit  has  a  right  to  be  heard,  not  merely  in  the  testi- 
mony of  his  witnesses,  but  also  in  the  arguments  of  his  counsel. 
It  matters  not  how  weak  and  inconclusive  his  testimony  may  be, 
if  it  is  enough  to  present  a  disputed  question  of  fact  upon  which 
he  is  entitled  to  a  verdict  of  the  jury,  he  has  a  right  to  present 
in  the  arguments  of  his  counsel  his  view  of  the  case.  This  is  no 
matter  of  discretion  on  the  part  of  the  court,  but  an  absolute 
right  of  the  party.  Courts  doubtless  may  prevent  their  time 
from  being  unnecessarily  occupied  by  prolix  arguments,  and  so 
may  limit  the  time  which  counsel  shall  occupy.  And  if  the  re- 
striction is  a  reasonable  one  in  view  of  the  questions  involved,  and 
the  testimony  presented,  there  will  be  no  error. ^     (The  State  v. 

iSee   Trice   v.    Ey.,    .35   Mo.    416,  White  v.  People,  90  Til.  117,  it  was 

holding  that  it  was  not  an  abuse  of  held  that  a  limit  of  five  minutes  in 

discretion  in  that  case  to  limit  the  effect  denied  the  right  of  argument, 
argument   to   ten   minutes.      But   in 


414  CONDUCT   OF   THE   TRIAL.  [ChAP.   IV. 

Riddle,  20  Kas.  716.)  But  limiting  the  time  of  an  argument  and 
refusing  to  permit  any  argument  at  all,  are  entirely  different  mat- 
ters. The  one  is  the  exercise  of  a  discretion,  the  other  is  a  denial 
of  a  right.  Weeks  on  Attorneys  at  Law,  pp.  209,  213,  §§  110, 
115 ;  Proffatt  on  Jury  Trials,  §  248 ;  Garrison  v.  Wilcoxson,  11 
Ga.  154 ;  People  v.  Keenan,  13  Cal.  581 ;  Commonwealth  v.  Porter, 
10  Mete.  263 ;  Commonwealth  v.  Austin,  7  Gray,  51 ;  Wilkins  v. 
Anderson,  11  Pa.  St.  399 ;  Dobbins  v.  Oswalt,  20  Ark.  619 ;  Tobin 
V.  Jenkins,  29  id.  151 ;  Brooks  v.  Perry,  23  id.  32 ;  Bertrand  v. 
Taylor,  32  id.  470 ;  Cory  v.  Silcox,  5  Ind.  370 ;  State  v.  Page,  21 
Mo.  257 ;  Freligh  v.  Ames,  31  id.  253  ;  Trice  v.  Rid.  Co.  35  id.  416 ; 
Bierson  v.  Mahoney,  6  Baxter  (Tenn.),  304;  Coldwell  v.  Brower, 
75  111.  516 ;  Slate  Co.  v.  Meyer,  8  Daly,  61 ;  Millard  v.  Thorne,  56 
N.  Y.  402. 

Not  seriously  disputing  this  proposition,  counsel  for  defendant 
in  error  insists  that  when  there  is  no  evidence  in  the  case,  legally 
sufficient,  from  which  a  jury  could  legitimately  find  a  verdict  in 
favor  of  a  party,  the  court  may  properly  refuse  any  argument  in 
behalf  of  such  party  to  the  jury,  (Bankard  v.  Rid.  Co.,  34  Md. 
197),  and  claims  that  here  the  testimony  was  all  one  way,  and 
necessarily  compelled  the  verdict  which  was  in  fact  returned.  It 
is  common  and  correct  practice  to  direct  a  jury  to  return  a  ver- 
dict in  favor  of  a  party  when  there  is  no  testimony  legally  suffi- 
cient to  justify  a  verdict  against  him.  And  in  such  cases  it  would 
be  folly  to  permit  argument  for  or  against  such  direction.  The 
counsel  is  doubtless  right  in  this,  and  therefore  we  are  compelled 
to  examine  the  evidence.  Yet  as  the  court  submitted  a  question 
of  fact  to  the  jury,  we  should  presume  that  there  was  a  question 
of  fact  to  be  determined  by  them.  The  court  did  not  direct  a 
verdict  for  the  plaintiff,  as  it  might  and  perhaps  ought  to  have 
done,  if  the  testimony  compelled  such  a  verdict.  The  action  of 
the  court  is  therefore  against  the  claim  of  the  counsel,     *     *     * 


HOGGETT  V.  EXLEY. 

9  Carrington  &  Paijne,  324.     [1839.] 

The  declaration  was  on  a  charter  party,  by  which  the  defend- 
ant undertook  to  provide  a  cargo  of  com  from  Marseilles  to  Eng- 
land, in  the  ship  Spring.    There  was  no  plea  of  the  general  issue. 


I 


Sec.  6.]  c.  b.  &  q.  r.  r.  co.  v.  bryan.  415 

but  a  special  plea  to  the  effect  that  after  the  making  of  the  charter 
party,  and  before  any  breach  of  the  contract,  an  agreement  was 
made  between  the  plaintiff  and  defendant,  that  a  cargo  of  cotton 
should  be  substituted  for  the  cargo  of  corn,  and  that  it  was  so 
substituted,  etc. 

R.  V.  Richards,  for  the  plaintiff,  claimed  the  right  to  begin 
on  the  ground  that  he  was  entitled  to  damages  for  the  breach  of 
the  contract. 

Bompas,  Serjt.,  for  the  defendant  objected.^-If  the  defendant 
succeeds  there  will  be  no  damages  to  assess. 

Maule,  J. — That  argument  would  prove  too  much. 

R.  V.  Richards. — Wherever  the  plaintiff  claims  unliquidated 
damages,  which  must  of  necessity  compel  him  to  call  witnesses, 
he  is  entitled  to  begin.  This  bears  no  analogy  to  the  cases  where 
the  plaintiff  seeks  to  recover  a  sum  certain. 

Bompas,  Serjt. — As  the  judges  have  laid  down  the  rule,  it  is 
confined  to  personal  injuries.  I  have  heard  Mr.  Baron  Parke  say 
so  most  distinctly.  And  it  is  so  laid  down  in  Carter  v.  Jones 
(6  C.  &  P.  64).  There  was  also  a  case  as  to  the  warranty  of  a 
horse,  which  was  tried  before  IMr.  Justice  Coleridge  at  the  last 
Bristol  Assizes,  in  which  a  similar  decision  was  given. 

Maule,  J. — I  wish  there  was  some  rule  which  was  imperative 
and  excluded  all  discretion  on  the  subject.  But  there  is  not, 
and  it  must  be  left  to  the  judge  to  decide  in  each  particular  case, 
whether  a  substantial  question  is  the  assessment  of  damages,  and 
if  it  is,  the  plaintiff  ought  to  begin.  ^  And  I  think  in  this  case  that 
he  ought  to  begin. 

R.  V.  Richards  then  stated  the  plaintiff's  case,  and  there  was 
ultimately  a  verdict  for  the  plaintiff. — Damages  £225. 


C.  B.  &  Q.  R.  R.  Co.  V.  BRYAN. 

90  Illinois,  126.     [1878.] 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court : 
This  was  an  action  for  an  assault  and  battery,  by  appellee 
against  the  railroad  company,  whilst  appellee  was  a  passenger 
on  a  train  owned  and  run  by  appellant  on  its  road  at  Sagetown. 

1  Accord :     Mercer  v.  Whall,  5  Ad. 
&  El.  (N.  S.)   447.  , 


416  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

It  is  averred  that  the  conductor  in  charge  of  the  train  com- 
mitted the  assault  and  battery. 

To  the  declaration  were  filed  two  pleas  of  justification. 
*  *  *  To  each  of  these  pleas  a  replication  was  filed,  and  issue 
joined  to  the  country.  The  cause  was  tried  by  the  court  and  a 
jury,  and  resulted  in  a  verdict  in  favor  of  plaintiff,  and  the 
assessment  of  his  damages  at  $500.  A  motion  for  a  new  trial  was 
entered,  but  was  overruled  by  the  court,  and  judgment  was  ren- 
dered on  the  verdict,  and  defendant  appeals.     *     *     * 

There  being  no  general  issue  or  any  traverse  of  the  declaration 
filed,  but  simply  pleas  of  confession  and  avoidance,  appellant, 
before  the  trial  commenced,  moved  the  court  to  allow  it  to  have 
the  affirmative  of  the  trial  and  argument,  but  this  the  court 
refused  and  an  exception  was  taken,  and  appellant  assigns  error 
thereon.  As  a  general  rule,  in  argument  or  other  contests  it  de- 
volves on  the  person  holding  the  affirmative  to  establish  his  prop- 
osition. Until  that  is  prima  facie  done,  the  person  holding  the 
negative  is  required  to  do  no  act  in  reference  to  the  issue.  Here, 
had  appellant  introduced  no  evidence,  appellee  would,  under  the 
issue,  have  been  entitled  to  judgment.  He  was  bound  to  intro- 
duce no  evidence  as  to  the  commission  of  the  act  complained  of, 
until  appellant  proved  a  prima  facie  justification  of  the  act  for 
which  it  was  sued.  Had  appellant  introduced  no  evidence,  then 
appellee  might  have  introduced  evidence  to  show  the  nature  and 
extent  of  the  injury,  precisely  as  in  case  of  a  default,  for  the 
purpose  of  enabling  the  jury  to  estimate  the  damages. 

According  to  the  doctrine  of  Harvey  v.  Ellithrope,  26  111.  418, 
and  Kells  v.  Davis,  57  id.  261,  under  these  issues  appellant  was 
entitled  to  hold  the  affirmative  of  the  trial  and  argument,  and  it 
should  not  have  been  deprived  of  the  right. 

For  the  errors  indicated,  the  judgment  of  the  court  below  is 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


CUNNINGHAM  v.  GALLAGHER. 

61  Wiscoiisin,  170.     [1884.] 

Appeal  from  the  Circuit  Court  for  Dane  county. 
The  action  is  for  slander.    The  complaint  charges,  in  the  usual 
form,  that,  in  the  presence  and  hearing  of  divers  other  persons, 


I 


Sec.  6.]  Cunningham  v.  Gallagher.  417 

the  defendant  maliciously  spoke  of  and  concerning  the  plaintiff, 
certain  false  and  defamatory  words  therein  stated.  The  answer 
of  the  defendant  admits  the  speaking  of  the  words  charged,  but 
alleges  that  they  were  true.  Also,  that  the  defendant  had  good 
reason  to  believe  and  did  believe  they  were  true. 

After  the  jury  called  to  try  the  case  were  sworn,  the  defendant 
claimed  that  he  Jiad  the  affirmative  of  the  issue,  and  was  entitled 
to  the  opening  and  closing  arguments.  The  court  held  other- 
wise. 

The  trial  resulted  in  a  verdict  for  plaintiff,  assessing  his  dam- 
ages at  $500.  A  motion  for  a  new  trial  was  denied,  and  judg- 
ment for  the  plaintiff  entered  pursuant  to  the  verdict.  The  de- 
fendant appeals  from  the  judgment. 

Lyons,  J.  A  reversal  of  the  judgment  is  claimed  on  two 
grounds:  (1)  because  the  court  denied  the  right  of  defendant's 
counsel  to  open  and  close  the  argument;  and  (2)  because  the 
court  denied  the  motion  for  a  new  trial.     *     *     * 

The  question  as  to  which  of  the  parties  in  this  action  held 
the  affirmative,  within  the  meaning  of  Circuit  Court  Rule  XXIII, 
has,  however,  been  very  fully  and  ably  argued  by  counsel,  and 
they  have  cited  numerous  cases  bearing  upon  it.  Inasmuch  as 
the  question  may,  and  probably  frequently  does,  arise  in  prac- 
tice, we  deem  it  proper  to  determine  it  here,  although,  for  the 
reason  just  stated,  it  scarcely  arises  on  this  record.  It  was 
formerly  held  in  England  that  in  actions  to  recover  unliquidated 
damages,  if  the  defendant  confessed  the  cause  of  action  and  set 
up  matter  in  avoidance  of  it,  he  was  entitled  to  open  and  close  the 
argument,  notwithstanding  the  burden  still  remained  with  the 
plaintiff  to  prove  the  facts  upon  which  he  relied  to  recover  the 
damages  he  claimed.  But  the  practical  operation  of  this  rule 
was  so  unsatisfactory  that  in  1833  the  judges,  by  resolution, 
changed  it,  so  that  thereafter,  in  such  cases,  the  plaintiff  was, 
and  still  is,  entitled  to  open  and  close.  The  rule  is  not  a  com- 
mon law  rule  in  that  sense  which  requires  an  act  of  parliament  or 
of  the  legislature  to  change  it,  but  is  merely  a  rule  of  practice 
within  the  control  of  the  courts. 

With  us  the  practice  is  different  in  different  states.  Some  of 
the  courts  have  adopted  the  old  English  rule,  and  some  the 
modern  rule  established  by  the  resolution  of  the  judges.  In  this 
state  the  practice  has  not  been  settled  by  this  court,  and  we  are 
at  liberty  to  adopt  either  rule.     We  think  the  modern  English 

H.  T.  P.— 2  7 


418  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

rule  is  supported  by  the  better  reasons.  It  is  difficult  to  under- 
stand how  it  can  logically  be  said  that  the  defandant  has  the 
affirmative  of  the  issue  in  a  given  case,  when  proof  is  required  of 
the  plaintiff  in  the  first  instance  to  entitle  him  to  the  damages 
which  he  claims.  The  amount  of  his  damages  remains  in  issue, 
even  though  the  defendant  confesses  the  cause  of  action  upon 
which  the  claim  for  damages  is  founded,  and  the  burden  remains 
with  the  plaintiff  to  prove  the  facts  connected  with  the  cause  of 
action  which  will  enable  the  jury  to  determine  whether  he  is  en- 
titled to  the  amount  claihied. 

For  the  reasons  above  suggested  we  hold  that  when,  in  an 
action  to  recover  unliquidated  damages,  the  defendant  confesses 
the  cause  of  action  and  pleads  in  avoidance  thereof,  the  affirma- 
tive is  with  the  plaintiff,  and,  under  Circuit  Court  Rule  XXIII, 
the  latter  is  entitled  to  open  and  close  the  arguments  to  the  jury.i 

By  the  Court — Judgment  affirmed. 


ST.  LOUIS  RY.  CO.  v.  JOHNSON. 
74  Kansas,  83.     [1906.] 

Sarah  E.  Johnson  brought  an  action  against  the  plaintiff  in 
error  to  recover  for  the  death  of  her  son,  William  A.  Johnson,  a 
brakeman,  who  was  killed  while  in  the  employ  of  the  railroad 
company  near  Scullin,  in  the  Indian  Territory.  She  recovered 
a  verdict  and  judgment  for  $2,000,  and  the  company  prosecutes 
this  proceeding  in  error.     *     *     * 

Porter,  J.  *  *  *  At  the  close  of  the  evidence  counsel  for 
plaintiff  waived  the  opening  argument.  Defendant  thereupon 
contended  that  by  waiving  the  opening  argument  counsel  also 
waived  the  right  to  make  a  closing  argument,  and  upon  the 
court 's  permitting  eoujisel  for  plaintiff  to  reply  to  the  argument 
of  defendant  an  exception  was  saved,  and  it  is  claimed  that  the 
court  erred.  (Railroad  Co.  v.  Vanzego,  71  Kan.  427,  80  Pac. 
944.)  Defendant  had  the  right  to  submit  the  case  to  the  jury 
without  argument  when  plaintiff  waived  the  opening  statement, 

1  Accord :  Buckley  v.  Knapp,  48 
Mo.  152  (action  for  libel  and  a  plea 
of  justification  only).  , 


I 


Sec.  6.]  prentis  v.  bates.  419 

but,  having  elected  to  argue  the  case  to  the  jury,  was  not  in  a 
position  to  object  to  plaintiff's  closing  the  argument  by  a  reply.^ 
The  party  on  whom  rests  the  burden  of  proof  has  the  right  to 
open  and  close  the  argument;  he  can  waive  either  of  these,  or 
both.  By  waiving  the  opening  he  waives  the  right  to  close,  pro- 
vided the  other  party  also  waives  his  argument.  This  is  the 
orderly  method  of  procedure  universally  adopted  by  the  courts. 
The  case  cited  does  not  go  to  the  extent  claimed  for  it  by  the 
plaintiff  in  error. 

Other  errors  are  complained  of  which  we  do  not  consider  ma- 
terial or  of  sufficient  weight  to  require  mention.  We  find  no  sub- 
stantial errors  in  the  record,  and  the  judgment  is  affirmed. 

All  the  justices  concurring. 


PRENTIS  V.  BATES. 

93  MicMgan,  234.     [1892.] 

]\IoNTGOMERY,  J.  A  rehearing  was  ordered  in  this  case  after 
full  consideration,  the  members  of  the  court  who  took  part  in  the 
former  decision  being  convinced  that  the  questions  involved  de- 
serve re-examination.  This  rehearing  has  been  had,  and  we  feel 
constrained  to  depart  from  some  of  the  conclusions  stated  in  the 
former  opinion,  which,  while  having  the  support  of  respectable 
authority,  we  find  to  be  in  conflict  with  some  of  the  former  rul- 
ings of  this  court,  which  for  the  time  escaped  attention.  For  con- 
venience we  will  consider  the  questions  involved  in  the  same 
order  adopted  in  the  former  opinion. 

1,  The  first  question  considered  was  whether  counsel  for  the 
contestants  abused  his  privilege  in  his  opening  statement  to  the 
jury.  On  the  former  hearing  the  sitting  members  of  the  court 
were  impressed  with  the  view  that  the  trial  judge  had  not  suf- 
ficiently restricted  contestants'  counsel  in  this  case,  but  a  fuller 
argument  and  examination  have  convinced  us  that  the  statements 
of  counsel,  both  as  to  the  propositions  of  law  contended  for  in  his 
opening,  and  as  to  the  facts  which  he  expected  to  prove,  were 

1  Accord :  Hickman  v.  Layne,  47 
Neb.  177.  Compare  Ey.  v.  Garrity, 
63  N.  J.  L.  352. 


420  CONDUCT   OF    THE   TRIAL.  [ChAP,    IV. 

made  in  the  utmost  good  faith.  The  will  offered  for  probate 
was  made  in  favor  of  the  relations  of  decedeiit's  husband,  to  the 
exclusion  of  her  own  nieces  and  nephews,  and  counsel  for  con- 
testants referred  to  this  fact,  and  claimed  that  it  was  an  unnat- 
ural will,  and  that  in  such  cases  the  law  will  draw  an  inference 
that  the  will  was  procured  by  fraud ;  and  also  argued,  in  the  same 
connection,  that  the  burden  of  proof  in  such  cases  would  rest 
upon  the  proponents.  The  question  of  undue  influence  was  after- 
wards eliminated  from  the  case  by  the  trial  judge.  It  is  un- 
necessary to  determine  whether  the  contestants'  position  on  the 
law  of  the  case  was  wholly  sound  or  not,  as  counsel  had  the  right, 
under  the  rulings  of  the  court,  to  state  in  good  faith  his  claims 
as  to  the  law,  in  so  far  as  it  was  necessary  to  give  the  jury  an 
understanding  of  his  theory.  As  was  said  in  Fosdick  v.  Van 
Arsdale,  74  Mich,  at  page  305  : 

' '  Counsel  have  the  right,  both  in  opening  the  case  to  the  jury, 
before  the  testimony  to  support  their  case  is  offered,  and  when 
closing  the  argument,  after  the  testimony  is  in,  to  state  to  the 
jury  that  they  claim  the  law  to  be  thus  and  so. ' ' 

This  ruling,  it  is  believed,  is  in  accord  with  the  general  under- 
standing of  the  profession,  and  certainly  is  no  departure  from 
the  practice  which  has  obtained  at  the  circuit  from  the  time  of 
the  adoption  of  the  present  rules  of  court.  This  right  would 
be  nothing  more  than  a  mere  shadow,  or,  worse,  a  dangerous 
snare,  if,  after  counsel  has  taken  his  position  in  good  faith,  he  is 
to  be  made  the  guarantor  of  his  views  of  the  law  on  every  ques- 
tion presented,  and,  if  in  the  end  it  should  be  found  that  he  is 
mistaken  on  some  point  of  minor  importance,  the  judgment  in 
his  favor  is  to  be  vacated  for  this  reason.  It  must  be  an  exceed- 
ingly plain  case  of  an  abuse  of  privilege  which  will  justify  the 
setting  aside  of  the  verdict  on  the  ground  of  improper  opening 
either  in  statement  of  the  law  or  fact.  Nothing  short  of  bad  faith 
or  a  gross  misconception  of  what  is  admissible,  resulting  in  bring- 
ing to  the  attention  of  the  jury  matters  wholly  irrelevant,  and  of 
a  nature  calculated  to  create  so  profound  an  impression  that  the 
charge  of  the  court  cannot  eliminate  the  prejudice  produced,  will 
justify  an  appellate  court  in  vacating  a  judgment  on  such 
grounds ;  and,  in  determining  whether  such  an  error  has  been 
committed,  it  is  believed  to  be  entirely  safe  to  credit  the  jury 
with  at  least  average  intelligence.  People  v.  Gosch,  82  Mich.  22 ; 
Porter  v.  Throop,  47  id.  313 ;  Campbell  v.  Kalamazoo,  80  id.  655. 


Sec.  6.]  heller  v.  pulttzer  pub.  co.  421 

Tested  by  this  rule,  we  do  not  think  any  error  was  committed  by 
counsel  in  his  opening,  either  in  stating  the  law  or  facts  which 
he  expected  to  prove.  The  statement  of  the  facts  expected  to  be 
proved  by  Dr.  Gallagher,  quoted  in  the  former  opinion,  was 
termed  ' '  extravagant. '  '^  A  careful  examination  of  the  testimony 
actually  introduced  convinces  us  that  the  contestants  made  the 
proposition  in  good  faith,  and,  although  the  proof  of  what  was 
said  was  not  as  full  as  the  opening  statement,  yet  the  substance 
of  what  was  stated,  namely  that  Mrs.  King  mistook  pills  for  flies, 
and  mistook  a  fly  for  the  pill,  was  testified  to  by  the  witness. 


HELLER  V.  PULITZER  PUB.  CO. 

153  Missouri,  205.      [1899.] 

Marshall,  J.  *  *  *  The  defendant  argues  that  if  the  jury 
are  the  judges  of  the  law  in  a  libel  case,  counsel  have  a  right  to 
read  law  books  to  the  jury,  and  that  the  trial  court  erred  in  re- 
fusing appellant's  counsel  the  right  to  do  so  in  this  case,  and  in 
support  of  this  contention  counsel  refers  to  Harvey  v.  State,  40 
Ind.  516 ;  Stout  v.  State,  96  Ind.  407,  and  Hannah  v.  State,  11 
Lea,  201.  These  were  all  criminal  cases,  and  the  Tennessee  case 
alone  was  a  criminal  libel  case.  It  is  argued,  however,  that  in  all 
cases  where  the  jury  are  the  judges  of  the  law  as  well  as  the  fact 
it  is  a  substantial  right  of  counsel  to  read  law  books  to  the  jury, 
and  in  support  of  this  counsel  refers  to  19  Am.  and  Eng.  Ency. 
of  Law  (1  Ed.),  p.  620,  and  the  cases  there  cited,  and  to  1  Thomp- 
son on  Trials,  §  945. 

We  are  of  opinion,  however,  that  as  under  Fox's  act  the  court 
or  judge  was  expressly  given  the  right  to  ' '  give  their  or  his  opin- 
ion or  direction  to  the  jury  on  the  matter  in  issue  between  the 
king  and  the  defendant,  or  defendants,  in  like  manner  as  in  other 
criminal  cases,"  so  under  our  Bill  of  Rights  it  is  the  province 
of  the  court  to  give  directions  to  the  jury,  that  is,  to  define  in 
general  terms  the  law  of  libel,  but  not  to  command  a  verdict  for 
the  plaintiff,  and  as  by  section  2188,  Revised  Statutes,  1889,  the 

1  For  an  illustration  of  an  im- 
proper opening  statement,  see 
Scripps  V.  Eeilly,  35  Mich.  371. 


422  CONDUCT   OF    THE   TRIAL.  [ClIAP.    IV. 

court  is  charged  with  the  duty  iu  civil  cases  of  giving,  in  writing, 
all  the  instructions  covering  the  law  applicable  to  the  matters  in 
issue,  which  the  parties  ask,  and  the  court  thinks  proper,  or  which 
the  court  maj^  give  of  its  own  motion.  It  was  never  intended  by 
the  framers  of  our  constitution  in  adopting  the  Fox  act,  to 
permit  the  practice  of  getting  the  law  before  the  jury  in  any 
other  manner  than  by  instructions  asked  of  and  given  by  the 
court.  (Sparf  v.  U.  S.,  156  U.  S.  51.)  Allowing  counsel  to  read 
law  books  to  the  jury  would  not  only  tend  to  confuse  the  jury, 
but  might  present  the  unseemly  spectacle  of  counsel  trying  to 
convince  the  jury,  by  what  some  author  says,  whose  ideas  are  not 
followed  in  this  State,  or  by  some  decision  of  a  court  of  some 
other  State  where  the  adjudications  are  not  in  accord  with  ours, 
that  the  directions  of  the  court  were  not  the  law ;  and  thus  the 
due  and  orderly  administration  of  justice,  so  necessary  to  be 
observed,  would  be  turned  into  a  farce  and  perhaps  an  insult  to 
the  judge  of  the  trial  court. 

Whatever  may  be  the  practice  in  other  States,  it  is  not  per- 
missible in  our  State  to  read  law  books  to  a  jury  in  any  kind  of 
a  case,  and  the  trial  court  did  not  err  in  stopping  counsel  for 
defendant  in  this  case,  when  he  attempted  to  do  so.^ 

For  the  error  in  giving  the  mandatory  instruction  to  find  for 
the  plaintiff,  the  judgment  of  the  Circuit  Court  is  reversed,  and 
the  case  remanded. 

All  concur. 

1  Shaw,  C.  J.,  in  Com.  v.  Porter,  law,  we  are  of  opinion  that  a  party 
10  Metcalf,  263,  "Considering  the  may  by  his  counsel  address  the  jury 
latitude  which  has  been  allowed  in  upon  questions  of  law,  subject  to 
this  Commonwealth,  by  a  long  course  the  superintending  and  controlling 
of  practice,  and  the  difficulty  of  power  of  the  court  to  decide  ques- 
drawing  an  exact  line  of  distinction  tions  of  law,  by  directions  to  the 
l>etween  that  full  statement  and  ex-  jury,  which  it  is  their  duty  to  follow, 
position  of  his  views  of  the  law,  In  ordinary  eases,  such  directions  to 
which  counsel  may  properly  make  in  the  jury,  upon  the  questions  arising 
a  general  address  to  the  court  and  in  the  cause,  are  not  given  until  the 
,-)ury,  upon  the  questions  embraced  parties,  by  their  counsel,  have  sub- 
in  the  issue,  and  involved  in  a  gen-  nutted  their  respective  views  of  the 
eral  verdict,  and  an  address  to  the  law  and  the  facts,  in  an  argument  to 
jury   separately    upon    questions    of  the  court  and  jury." 


Sec.  6.]  dowdell  v.  wilcox.  423 

DOWDELL  V.  WILCOX. 

64  Iowa,  721.      [1884.] 

This  action  involves  the  title  and  ownership  of  two  horses  and 
a  wagon.  The  property  was  levied  upon  by  the  defendant,  who 
is  sheriff,  by  virtue  of  an  execution  against  Thomas  Dowdell,  the 
husband  of  the  plaintiff.  The  plaintiff  claims  that  she  is  the 
owner  of  the  property.  The  defendant  claims  that  whatever  title 
the  plaintiff  has  in  the  property  is  fraudulent  as  to  the  creditors 
of  the  husband.  There  was  a  trial  by  jury,  verdict  and  judgment 
for  the  plaintiff.     Defendant  appeals. 

RoTHROCK,  C.  J.  *  *  *  Accompanying  the  motion  for  a 
new  trial,  the  defendant  filed  an  affidavit  of  one  of  his  counsel, 
setting  forth  what  is  claimed  to  be  improper  conduct  of  plaintiff 
and  her  counsel  during  the  argument  of  the  ease  to  the  jury. 
It  is  in  effect  claimed  that  counsel  made  unwarranted  statements 
to  the  jury  in  his  closing  argument ;  that  he  misstated  the  law, 
and  appealed  to  the  prejudice  of  the  jury  in  the  plaintiff's  behalf, 
because  she  is  a  widow,  and  denounced  the  judgment  creditors 
as  leeches  and  oppressors  of  poor  women  and  widows ;  and  that 
plaintiff  sat  near,  facing  the  jury,  and,  when  counsel  made  sym- 
pathetic appeals  to  the  jury  because  her  husband  had  been  a 
soldier  and  she  was  now  a  widow,  she  would  weep,  or  pretend  to 
weep,  etc. 

We  do  not  think  the  judgment  should  be  reversed  for  this 
alleged  misconduct  of  counsel  and  plaintiff.  Indeed,  we  are  not 
prepared  to  say  that  there  was  a  departure  from  what  ought  to 
be  regarded  as  fair  and  legitimate  in  the  trial  of  a  cause  to  a  jury. 
Great  latitude  is  allowed  in  appealing  to  the  sympathy  of  the 
jury  in  the  arguments  of  the  counsel.  That,  and  the  widow  in 
tears,  are  a  kind  of  stage  performance  which  courts  cannot  very 
well,  and  perhaps  ought  not  to  attempt  to,  control.^  Besides,  the 
record  does  not  show  that  any  objection  was  made  by  counsel  for 
appellant  to  the  conduct  of  which  he  now  complains. 

Affirmed. 

1  For  illustrations  of  improper  ap-       126  111.   150;   Neff  v.  Cameron,  213 
peals  to   prejudice  against  the   de-       Mo.  350. 
fendant,    see    McDonald    v.    People, 


424  CONDUCT   OF    THE   TRIAL.  [ChAP,   IV. 

ROLFE  V.  INHABITANTS  OF  RUMFORD. 

66  Maine,  564.     [1877.] 

Case  for  injury  to  plaintiff's  wife  through  defective  town  way 
January  15,  1874. 

The  case  was  on  trial  nearly  a  week  and  resulted  in  a  verdict 
for  the  plaintiffs  of  $275,  which  they  moved  to  set  aside  for  in- 
adequacy, as  against  law  and  evidence.  They  also  filed  the  fol- 
lowing bill  of  exceptions: 

"E.  G.  Harlow,  one  of  the  counsel  of  the  defendants,  in  his 
closing  argument  to  the  jury  at  the  trial  of  said  case,  was  per- 
mitted by  the  court  against  the  seasonable  objection  and  protest 
of  the  counsel  for  the  plaintiffs,  to  state  to  the  jury  the  amount  of 
damages  recovered  in  other  cases  than  the  one  on  trial,  concern- 
ing which  no  testimony  had  been  offered  and  which  was  not  in 
any  law  report,  and  to  declare  as  matter  of  fact  that  said  cases 
were  identical  or  similar  to  the  one  then  on  trial;  and  to  argue 
that  the  damages  in  the  case  on  trial  should  in  no  event  be  greater 
than  the  damages  found  by  the  jury  in  the  cases  so  commented 
upon ;  and  further,  that  the  cause  of  action  in  the  case  on  trial 
had  probably  passed  out  of  the  control  of  the  plantiffs  in  the 
case,  and  of  the  administrator  of  Elizabeth  S.  Rolfe,  and  to  state 
to  the  jury  certain  alleged  facts  as  to  the  death  by  consumption 
of  other  persons  than  the  said  Elizabeth  S.  Rolfe,  alleged  by  said 
Harlow  to  be  within  his  knowledge,  but  concerning  which  no  tes- 
timony was  offered;  and  to  argue  to  the  jury  that  the  counsel 
for  plaintiffs  came  from  another  county,  and  had  appeared  in 
other  cases  against  other  towns  in  Oxford  county,  and  had  recov- 
ered damages  therein  against  said  towns,  although  no  evidence 
was  offered  touching  the  same,  which  statements  and  arguments 
the  plaintiffs'  counsel  seasonably  requested  the  court  to  exclude, 
but  which  the  court  declined  to  exclude.  The  presiding  judge 
failed  to  give  any  instructions  touching  said  acts,  argum.ents  and 
statements  of  alleged  facts  done  and  made  by  said  counsel  for 
the  town,  except  that  the  facts  were  to  be  settled  from  the  testi- 
mony in  the  case  given  under  oath." 

Virgin,  J.  "We  think  the  learned  judge  before  whom  this  case 
was  tried  erred  in  permitting  the  counsel  for  the  defendants, 
against  the  seasonable  interposition  of  the  plaintiffs'  counsel,  to 


Sec.  6.]  rolfe  v.  inhabitants  op  rumford.  425 

proceed  with  his  argument  upon  asserted  facts  not  in  evidence 
and  having  no  legitimate  pertinency  to  the  issue. 

It  is  indispensable  to  the  orderly  course  of  judicial  procedure 
and  an  impartial  administration  of  the  laws,  that  those  officially 
engaged  in  the  trial  of  causes  shall  faithfully  observe  the  estab- 
lished rules  of  practice.  The  constitution  guarantees  to  the 
parties  of  a  cause  the  right  of  a  trial  by  a  jury  duly  constituted, 
and  to  have  the  trial  conducted  according  to  the  course  and  usage 
of  the  common  law  and  the  long  established  rules  of  judicial  pro- 
ceedings; and  whenever  these  rules  are  substantially  violated,  the 
right  of  the  parties  litigant  is  to  that  extent  denied. 

The  law,  with  great  care,  prescribes  numerous  rules  for  deter- 
mining the  admissibility  of  the  facts  to  be  submitted  to  the  jury, 
vigilantly  and  scrupulously  excluding  from  their  consideration 
all  such  as  do  not  come  within  the  rules.  These  rules  require 
among  other  things  that  the  facts  shall  be  material  and  pertinent 
to  the  issue ;  and  that,  when  not  contained  in  documents,  they  shall 
be  delivered  under  the  sanctions  of  an  oath,  and  their  truthful- 
ness tested  by  cross-examination.  Even  a  juror's  own  personal 
knowledge  of  pertinent  facts  cannot  be  considered  by  himself  and 
his  fellows  in  making  up  their  verdict  unless  it  take  on  the  form 
of  testimony  by  being  delivered  from  the  stand  by  the  juror 
under  oath  as  a  witness.  Otherwise,  testimony  which  might  influ- 
ence a  verdict  would  escape  the  ordeal  of  cross-examination  and 
discussion.  As  a  sequence  of  these  rules,  one  of  the  essential  ele- 
ments in  the  trial  by  jury  is  that  they  are  sworn  to  render  their 
verdict  in  accordance  with  such  facts  only  as  are  adduced  at  the 
trial ;  and  whenever  it  is  rendered  without  evidence,  against  evi- 
dence or  upon  incompetent  evidence  which  may  have  come  to  the 
knowledge  of  the  jurors  by  direct  ruling  in  the  court  room,  or  by 
accident  or  mistake  outside  of  the  court  room,  it  is  liable  to  be  set 
aside  and  a  new  trial  granted. 

So  the  courts  have  usually  been  very  firm,  whenever  occasion 
has  required,  in  confining  counsel  within  proper  and  reasonable 
bounds  to  whatever  is  pertinent  to  the  matter  on  trial.  State- 
ments of  alleged  facts  not  adduced  in  evidence,  and  comments 
thereon  are  irrelevant,  not  pertinent  and  are  therefore  clearly 
not  witliin  the  privilege  of  counsel ;  and  any  such  practice  on 
the  part  of  counsel  should  be  promptly  checked,  especially  when 
objected  to  by  the  other  side.    Berry  v.  State,  10  Ga.  511 ;  Mit- 


426  CONDUCT   OF   THE    TRIAL.  [ChAP,    IV. 

chum  V.  State,  11  Ga.  615 ;  Bullock  v.  Smith,  15  Ga.  395;  Dicker- 
son  V.  Burke,  25  Ga.  225 ;  Wightman  v.  Providence,  1  Clifford, 
524;  Tucker  v.  Henniker,  41  N.  H.  317. 

In  this  connection  we  adopt  the  views  of  the  courts  of  Georgia, 
and  New  Hampshire  expressed  in  the  following  forcible  and 
felicitous  language : 

"It  is  irregular  and  illegal  for  counsel  to  comment  upon  facts 
not  introduced  in  evidence  before  the  jury,  and  not  legally 
competent  as  evidence.  The  counsel  represents  and  is  a  substi- 
tute for  his  client ;  whatever,  therefore,  the  client  may  do  in 
the  management  of  his  cause  may  be  done  by  his  counsel.  The 
largest  and  most  liberal  freedom  of  speech  is  allowed,  and  the 
law  protects  him  in  it.  The  right  of  discussing  the  merits  of 
the  cause,  both  as  to  the  law  and  the  facts,  is  unabridged.  The 
range  of  discussion  is  wide.  He  may  be  heard  in  argument  upon 
every  question  of  law.  In  his  addresses  to  the  jury  it  is  his 
privilege  to  descant  upon  the  facts  proved,  or  admitted  in  the 
pleadings ;  to  arraign  the  conduct  of  the  parties ;  impugn,  excuse, 
justify  or  condemn  motives,  so  far  as  they  are  developed  in 
evidence,  assail  the  credibility  of  witnesses,  when  it  is  impeached 
by  direct  evidence,  or  by  the  inconsistency  or  incoherence  of 
their  testimony,  their  manner  of  testifying,  their  appearance  on 
the  stand,  or  by  circumstances.  His  illustrations  may  be  as 
various  as  the  resources  of  his  genius ;  his  argumentation  as  full 
and  profound  as  his  learning  can  make  it;  and  he  may,  if  he 
will,  give  play  to  his  wit,  or  wings  to  his  imagination. 

' '  To  his  freedom  of  speech,  however,  there  are  some  limitations. 
His  manner  must  be  decorous.  All  courts  have  power  to  protect 
themselves  from  contempt,  and  indecency  in  words  or  sentiments 
is  contempt.  This  is  a  matter  of  course  in  the  courts  of  civilized 
communities,  but  not  of  form  merely ;  for  no  court  can  command 
from  an  enlightened  public  that  respect  necessary  to  an  efficient 
administration  of  the  law,  without  maintaining,  in  its  business 
proceedings,  that  courtesy,  dignity,  and  purity  which  characterize 
the  intercourse  of  gentlemen  in  private  life. 

"When  counsel  are  permitted  to  state  facts  in  argument,  and 
to  comment  upon  them,  the  usage  of  courts  regulating  trials  is 
departed  from,  the  laws  of  evidence  are  violated,  and  the  full 
benefit  of  trial  by  jury  is  denied.  It  may  be  said  in  answer 
to  these  views  that  the  statements  of  counsel  are  not  evidence; 
that  the  court  is  bound  so  to  instruct  the  jury,  and  that  they 


Sec.  6.]  rolpe  v.  inhabitants  of  rumford,  427 

are  sworn  to  render  their  verdict  only  according  to  the  evidence. 
All  this  is  true ;  yet  the  necessary  effect  is  to  bring  the  statements 
of  counsel  to  bear  upon  the  verdict  with  more  or  less  force, 
according  to  circumstances;  and  if  they  in  the  slightest  degree 
influence  the  finding,  the  law  is  violated,  and  the  purity  and 
impartiality  of  the  trial  tarnished  and  weakened.  If  not  evi- 
dence, then  manifestly  the  jury  have  nothing  to  do  with  them, 
and  the  advocate  has  no  right  to  make  them.  It  is  unreasonable 
to  believe  the  jury  will  entirely  disregard  them.  They  may 
struggle  to  do  so  and  think  they  have  done  so,  and  still  be  led 
involuntarily  to  shape  their  verdict  under  their  influence.  That 
influence  will  be  greater  or  less,  according  to  the  character  of 
the  counsel,  his  skill  and  adroitness  in  argument,  and  the  force 
and  naturalness  with  which  he  is  able  to  connect  the  facts  he 
states  with  the  evidence  and  circumstances  of  the  case.  To  an 
extent  not  definable,  yet  to  a  dangerous  extent,  they  unavoidably 
operate  as  evidence  which  must  more  or  less  influence  the  minds 
of  the  jury,  not  given  under  oath,  without  cross-examination,  and 
irrespective  of  all  those  precautionary  rules  by  which  competency 
and  pertinency  are  tested."  Nesbit,  J.,  in  Mitchum  v.  State, 
sup.  Fowler,  J.,  in  Tucker  v.  Henniker,  sup.  See  also  Bald- 
win's Appeal  (Conn.),  3  L.  &  Eq.  Rep.  409. 

"Whether  or  not  the  verdict  is  so  inadequate  as  to  warrant  us 
in  setting  it  aside  upon  the  motion,  we  have  not  considered  it 
necessary  to  express  an  opinion.  In  actions  of  this  nature,  the 
principles  upon  which  damages  are  assessed  are  very  indefinite 
at  best,  and  therefore  very  much  is  necessarily  left  to  the  good 
judgment  and  sound  discretion  of  the  jury.  Hence,  when,  as  in 
the  case  at  bar,  the  testimony  is  conflicting  on  several  points, 
courts  are  very  reluctant  to  interfere  with  the  verdict  on  the 
alleged  ground  of  excessive  or  inadequate  damages,  except  when 
it  is  so  large  or  so  small  as  to  show  that  it  is  the  result  of 
perverse  judgment  or  gross  error,  or  that  the  jury  had  acted 
under  undue  motives  or  misconception.  Therefore  we  do  not 
pass  upon  the  motion.  But  inasmuch  as  that  part  of  the  closing 
argument  to  which  exceptions  are  alleged  was  clearly  illegal  and 
violative  of  the  rights  of  the  plaintiffs,  and  urged  by  an  experi- 
enced counsel  of  high  character  and  acknowledged  ability,  must 
have  necessarily  had  more  or  less  influence  upon  the  minds  of 
the  jury,  notwithstanding  the  instruction  of  the  presiding  justice 


428  CONDUCT   OF   THE   TRIAL.  [ChAP,    IV 

that  the  ease  must  be  settled  from  the  sworn  testimony,  we  think 
the  exceptions  must  be  sustained. ^ 

Exceptions  sustained. 


BAKER  V.  CITY  OF  MADISON. 

62  Wisconsin,  137.     [1885.] 

Lyon,  J.  This  action  was  brought  to  recover  damages  for 
injuries  received  by  the  plaintiff,  alleged  to  have  been  caused 
by  a  defect  in  a  gutter  at  the  intersection  of  certain  streets 
in  the  defendant  city,  by  reason  of  which  a  wagon  loaded  with 
hay  upon  which  the  plaintiff  was  riding  was  overturned,  inflict- 
ing the  injuries  complained  of.  The  case  has  been  tried  three 
times.  The  first  trial  was  had  before  Judge  Stewart,  in  the 
Dane  County  Circuit  Court,  and  resulted  in  a  verdict  for  $3,000 
in  favor  of  the  plaintiff.  That  court  set  aside  the  verdict  on 
the  ground  that  the  testimony  showed  conclusively  that  the 
plaintiff  was  guilty  of  negligence  which  contributed  directly 
to  the  injury. 

The  place  of  trial  was  then  changed  to  the  Jefferson  County 
Circuit  Court,  and  was  there  tried  before  the  late  Judge  Conger. 
On  that  trial  the  plaintiff  had  a  verdict  for  $2,500,  for  which  sum 
judgment  was  entered  against  the  defendant  city.  An  appeal 
was  taken,  and  this  court  reversed  such  judgment,  for  the  reason 
that  the  evidence  showed  conclusively  that  the  gutter  where 
the  accident  happened  was  in  proper  repair.     56  "Wis.  374. 

The  cause  was  then  remanded,  and  again  tried  in  the  same 
court  before  Judge  Bennett,  and  the  trial  resulted  in  a  verdict 
and  judgment  for  the  plaintiff  for  $6,000.  This  appeal  is  by 
the  defendant  from  such  judgment.     *     *     * 

III.  It  is  maintained  by  counsel  for  defendant  that  counsel 
for  the  plaintiff  committed  several  improprieties  on  the  trial, 
which  bring  the  case  within  the  rule  of  Brown  v.  Swineford, 
44  Wis.  282,  and  hence  that  the  judgment  ought  to  be  reversed. 

1  See  also  Evans  v.  Trenton,  112  argument  by  counsel  for  other  pur- 
Mo.  390.  poses.     Waldron  v.  Waldron,  156  U. 

And  so  where  evidence  is  admitted  S.  361. 
for  one  purpose  only,  but  is  used  in 


J 


Sec.  6.]  baker  v.  city  of  madison.  429 

That  rule,  as  formulated  by  the  late  Chief  Justice  Ryan,  is  that 
"it  is  error  sufficient  to  reverse  a  judgment,  for  counsel,  against 
objection,  to  state  facts  pertinent  to  the  issue  and  not  in  evidence, 
or  to  assume  arguendo  such  facts  to  be  in  the  case  when  they 
are  not.  *  *  *  ^^d  if  counsel  persevere  in  arguing  upon 
pertinent  facts  not  before  the  jury,  or  appealing  to  prejudices 
foreign  to  the  case  in  evidence,  exception  may  be  taken  by  the 
other  side,  which  may  be  good  ground  for  a  new  trial,  or  for 
a  reversal  in  this  court."  We  are  not  disposed  to  question  or 
in  any  degree  weaken  the  authority  of  that  case.  We  believe 
it  rests  upon  sound  principles,  essential  to  the  due  administra- 
tion of  justice,  and  should  not  be  disturbed.  The  rule  there 
laid  down  will  be  promptly  applied  to  every  case  fairly  within 
it  which  may  come  before  this  court.     Is  this  such  a  case  ? 

The  charge  of  misconduct  here  is  made  up  of  several  specifica- 
tions. As  to  some  of  them,  no  objection  was  made  or  exception 
taken.  These  need  hot  be  stated,  because  they  are  clearly  not 
within  the  above  rule. 

One  of  the  charges  is  that  Mr.  Welch,  one  of  the  attorneys 
for  the  plaintiff,  when  testifying  as  a  witness,  made  answer  to 
a  question,  a  portion  of  which  answer  was  stricken  out  by  the 
court  as  improper,  and  afterwards,  in  another  answer,  repeated 
the  objectionable  words,  which  were  again  stricken  out.  There 
is  also  another  specification  of  the  same  character.  These  relate 
to  the  conduct  of  Mr.  Welch  as  a  witness,  not  as  counsel.  If  a 
witness  is  guilty  of  misconduct  on  the  stand,  the  court  should 
admonish,  and,  if  necessary,  punish  him  th^efor — not  the  party 
whose  witness  he  is.  The  court  was  not  asked  to  do  so  in  the 
present  case. 

The  most  objectionable  remarks  made  on  the  trial  by  counsel 
for  the  plaintiff,  to  which  objection  was  taken,  were  made  in 
response  to  an  objection  to  testimony  which  such  counsel  was 
seeking  to  introduce.  He  said :  "I  am  careful  not  to  get  error 
into  the  case.  If  my  client  was  a  rich  man,  I  should  like  to 
litigate  this  matter  for  the  next  twenty-five  years,  and  I  think 
it  would  give  me  a  good  support ;  but  my  client  is  poor,  and 
we  live  in  Minneapolis,  and  every  time  we  come  down  here  it 
costs  him  a  hundred  dollars."  The  remark  that  plaintiff  was  a 
poor  man,  and  the  allusion  to  the  expense  of  the  litigation  in 
connection  with  that  fact,  if  unproved,  would  have  been  improper, 
not  because  such  statement  was  pertinent  to  the  issue — for  it 


430  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

was  not — but  because  it  might  have  tended  unduly  to  influence 
the  minds  of  the  jurors  in  favor  of  the  plaintiff,  which,  on  prin- 
ciple, is  as  objectionable  as  prejudice  against  the  defendant.  But 
we  think  it  a  fair  inference  from  the  testimony  that  the  plaintiff 
is  not  rich.  He  was  a  farm  laborer,  working  for  others  for  hire 
in  summer,  before  and  after  he  was  injured,  and  sometimes  taught 
school  in  the  winter.  He  had  no  mechanical  trade.  It  is  not 
unreasonable  to  infer  from  his  condition  and  employment  that 
he  was  poor.  The  rule  we  are  considering  does  not  prohibit 
a  statement  by  counsel  of  a  fact  proved  in  the  case,  even  though 
such  fact  is  outside  the  issue.  We  perceive  nothing  else  objection- 
able in  what  counsel  then  said.  The  balance  of  it  seems  to  have 
been  mere  harmless  pleasantry. 

AVhen  objection  was  made  to  the  remarks  now  being  con- 
sidered, counsel  withdrew  them,  as  far  as  he  could  do  so,  by 
saying  that  he  took  them  back.  We  do  not  think  that  the  con- 
sequences of  an  improper  statement  by  counsel,  which  comes 
within  the  rule  of  Brown  v.  Swineford,  can  be  so  easily  averted. 
No  importance  is  given  to  this  "taking  back"  process,  and  it 
would  scarcely  save  the  judgment  had  the  rule  above  stated  been 
violated  in  the  first  instance. ^ 

We  conclude  that  none  of  the  specifications  of  misconduct  by 
counsel  bring  the  case  within  the  rule  of  Brown  v.  Swineford, 
supra.     *     *     * 


Section  7.     Instructions. 
(a)   Questions  for  the  judge  or  jury. 

MANWARING  v.  HARRISON. 

1  Strange,  508.      [1722.] 

Upon  the  17th  of  September  (being  Saturday),  about  two 
o'clock  in  the  afternoon,  Harrison  gave  to  IManwaring  in  payment 
a  note  for  £100  by  Mitford  and  Mertins,  goldsmiths,  dated  5th 
of  September,  payable  to  Harrison  or  order.  The  same  afternoon 
Manwaring  pays  away  the  note  to  J.  S. ;  Mitford  and  Mertins  paid 

1  The  error  is  usually  corrected  by      on  the  subject  by  the  judge.     State 
a  withdrawal  of  the  improper  state-       v.  Hack,  118  Mo.  92. 
ments,  followed  by  proper  direction 


Sec.  7.]  tindal  v.  brown.  431 

all  Saturday  and  Monday,  and  on  Tuesday  morning,  as  soon  as 
the  shop  was  open,  and  before  any  money  paid,  J.  S.  came  and 
demanded  the  money,  but  Mitford  and  Mertins  stopped  payment ; 
Manwaring  paid  back  the  money  to  J.  S.  and  demanded  it  again 
of  Harrison,  who,  refusing  to  pay  it,  an  action  was  brought. 
And  on  non  assumpsit  the  chief  justice  told  the  jury  that  giving 
the  note  is  not  immediately  payment,  unless  the  receiver  does 
something  to  make  it  so  by  neglecting  to  receive  it  in  a  reasonable 
time,  by  which  he  gives  credit  to  the  maker  of  the  note.  He  left 
it  to  them  whether  there  had  been  any  neglect,  and  observed  that 
the  note  was  payable  to  Harrison,  who  had  kept  it  eleven  days, 
and  probably  would  not  have  demanded  it  sooner  than  Manwar- 
ing  did,  it  appearing  the  goldsmiths  were  in  full  credit  all  the 
while.  The  jury  desired  they  might  find  it  specially,  and  leave 
it  to  the  court  whether  there  was  a  reasonable  time ;  but  the  chief 
justice  told  them  they  were  judges  of  that ;  whereupon  they  found 
pro  def.  and  declared  it  as  their  opinion  that  a  person  who  did 
not  demand  a  goldsmith's  note  in  two  days  took  the  credit  on 
himself.^ 


TINDAL  V.  BROWN. 
1  Term  Reports,  167.     [1786.] 

Indorsees  of  a  promissory  note  against  the  indorser. 

This  cause  first  came  on  to  be  tried  at  the  sittings  after  Easter 
term,  1785,  before  Lord  Mansfield,  at  Guildhall,  when  the  jury 
found  a  verdict  for  the  plaintiffs.  On  a  motion  for  a  new  trial 
in  last  Trinity  term  the  facts  appeared  to  be  these :  that  on  the 
21st  of  August,  1784,  the  note  in  question  was  made  by  one 
Donaldson  for  £35  payable  six  weeks  after  date ;  that  on  the 
5th  October,  1784,  the  day  on  which  the  note  became  due,  allow- 
ing for  the  three  days  grace,  one  Howell  (the  plaintiff's  clerk) 
called  on  Donaldson  at  ten  in  the  morning,  and,  not  finding  him 
at  home,  he  left  word  that  the  note  was  due,  and  desired  Donald- 
son would  send  for  it  at  his  master's  where  it  lay  and  take  it 
up ;  that  on  the  next  day,  Wednesday,  the  6th  of  October,  he 

1  For  the  modern  rule  on  this 
subject,  see  Bank  v.  Zimmerman, 
185  N.  Y.  210  (1906). 


\ 


432  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

called  again  on  Donaldson,  who  told  him  he  would  take  it  up 
that  day  within  the  banking  hours,  which  were  from  9  to  4 
o'clock;  that  the  note  not  being  taken  up  that  day,  he  called 
again  on  Donaldson  on  Thursday,  the  7th,  and  not  finding  him 
at  home,  he  was  sent  to  the  defendant  Brown  to  tender  the  note, 
who  refused  to  pay  it,  saying  the  plaintiffs  had  made  it  their 
own.  Donaldson  proved  at  the  trial  that  immediately  on  his 
parting  with  Howell  on  Wednesday,  the  6th,  he  went  to  Brown 's 
house,  and  not  finding  him  at  home  he  left  a  message  with  his 
wife  that  the  note  was  due,  that  he  (Donaldson)  could  not  pay 
it,  and  desired  that  Brown  would  take  it  up,  adding  that  he 
would  make  it  good  to  him. 

All  the  parties  lived  at  Bristol  within  twenty  minutes  walk 
of  each  other. 

After  argument  by  Lee  and  Morgan,  for  the  plaintiffs,  and 
Cowper  and  Baldwin  for  the  defendant,  the  court  delivered 
their  opinion  to  the  following  effect : 

Lord  Mansfield,  Ch.  J.  On  full  consideration,  I  am  now 
decidedly  of  opinion  that  there  ought  to  be  a  new  trial.  It  is 
of  great  consequence  that  this  question  should  be  settled.  Cer- 
tainty and  diligence  are  of  the  utmost  importance  in  mercantile 
transactions.  It  is  extremely  clear  that  the  holder  of  a  bill, 
when  dishonored  by  the  acceptor,  must  give  reasonable  notice 
to  the  drawer  or  indorser.  What  is  reasonable  notice  is  partly 
a  question  of  fact,  and  partly  a  question  of  law.  It  may  depend 
in  some  measure  on  facts;  such  as  the  distance  at  w^hich  the 
parties  live  from  each  other,  the  course  of  the  post,  etc.  But 
wherever  a  rule  can  be  laid  down  with  respect  to  this  reason- 
ableness, that  should  be  decided  by  the  court,  and  adhered  to 
by  every  one  for  the  sake  of  certainty.  I  cannot  form  to  myself 
an  idea  of  the  ground  on  which  the  jury  went  in  giving  this 
verdict.  Did  they  conceive  the  rule  to  be  that  the  holder  might 
delay  giving  notice  for  two  days,  or  what  other  time  did  they 
mean  to  allow  him?  Here  an  earlier  notice  might  certainly 
have  been  given,  as  all  the  parties  lived  within  twenty  minutes 
walk  of  each  other.  The  bill  was  dishonored  on  the  5th,  the 
clerk  saw  the  maker  on  the  6th,  and  gave  him  time  during  the 
banking  hours  of  that  day;  and  the  plaintiffs  did  not  go  at 
4  that  afternoon,  but  waited  till  the  next  day.  It  has  been 
held    (vide  Dougl.  497)    that  where  the  party  liable  does  not 


Sec.  7.]  tindal  v.  brown.  433 

live  in  the  same  place,  the  holder  must  write  by  the  next  post 
after  the  bill  is  dishonored.  It  was  well  observed  by  the  coun- 
sel that  the  juries  were  obstinate  in  the  case  of  Metcalf  and 
Hall  (Tr.  22  Geo.  3  B.  R.),  where  they  struggled  so  hard,  in 
spite  of  the  opinion  of  the  court,  to  narrow  the  rule,  that  they 
held  you  must  in  certain  cases  demand  payment  on  a  banker's 
draft  within  an  hour.  Here  the  struggle  is  to  give  a  greater 
latitude  than  is  necessary.  It  was  once  doubted  (V.  Bull.  N.  P. 
274,  276)  whether  notice  within  fourteen  days  was  not  sufficient. 
For  the  sake  of  diligence  and  certainty,  I  am  of  opinion  that 
there  should  be  a  new  trial. 

WiLLES,  J.  I  agree  that  there  ought  to  be  a  new  trial.  New 
credit  was  given  to  the  maker  on  the  7th;  the  plaintiffs'  clerk 
went  first  to  Donaldson  to  demand  the  bill  of  him,  and  after 
that  they  sent  it  to  the  defendant.  As  to  the  notice,  I  cannot 
consider  the  notice  given  by  the  maker  equal  to  that  given 
by  the  indorser.  The  plaintiffs  have  not  acted  with  legal  dili- 
gence. 

AsHURST,  J.  It  is  of  dangerous  consequence  to  lay  it  down 
as  a  general  rule,  that  the  jury  should  judge  of  the  reasonable- 
ness of  time.  It  ought  to  be  settled  as  a  question  of  law.  If 
the  jury  were  to  determine  this  question  in  all  cases,  it  would  be 
productive  of  endless  uncertainty.  The  next  day  at  the  most 
is  as  long  as  is  necessary  in  a  case  circumstanced  like  this.  If 
the  parties  live  at  a  small  distance,  this  is  sufficient  time ;  if 
at  a  greater,  they  should  write  by  the  next  post.  Notice  means 
something  more  than  knowledge;  because  it  is  competent  to  the 
holder  to  give  credit  to  the  maker.  It  is  not  enough  to  say  that 
the  maker  does  not  intend  to  pay,  but  that  he  (the  holder)  does 
not  intend  to  give  credit.  In  the  present  case  there  is  no  notice ; 
for  the  party  ought  to  know  whether  the  holder  intends  to  give 
credit  to  the  maker,  or  whether  he  intends  to  resort  to  the 
indorser. 

BuLLER,  J.  The  numerous  cases  on  this  subject  reflect  great 
discredit  on  the  courts  of  Westminster.  They  do  infinite  mis- 
chief in  the  mercantile  world ;  and  this  evil  can  only  be  remedied 
by  doing  what  the  court  wished  to  do  in  the  case  of  Metcalf 
and  Hall  by  considering  the  reasonableness  of  time  as  a  question 
of  law  and  not  of  fact.  Whether  the  post  goes  out  this  or  that 
day,  at  what  time,  etc.,  are  matters  of  fact;  but  when  those  facts 


434 


CONDUCT   OF   THE   TRIAL. 


[Chap.  IV. 


are  established,  it  then  becomes  a  question  of  law  on  those  facts 
what  notice  shall  be  reasonable.^     *     *     * 


MACBEATH  v.  HALDIMAND. 


1  Term  Reports,  172.     [1786.] 


This  was  an  action  upon  promises  against  the  defendant,  as 
agent,  for  work  and  labor,  etc. 

Plea — the  general  issue. 

The  cause  was  tried  at  the  sittings  after  last  Hilary  term  before 
BuLLER,  Justice,  when  a  verdict  was  found  for  the  defendant  by 
the  direction  of  the  judge. 

Upon  a  motion  for  a  new  trial  by  Cowper,  the  following  facts 
appeared  from  the  report : 

In  the  year  1779  the  defendant,  being  Governor  of  Quebec, 
appointed  Captain  Sinclair  to  the  command  of  a  fort  called 
]\Iichilimakinae,  situated  upon  Lake  Huron,  in  the  Province  of 
Canada. 

On  the  17th  of  August,  1779,  the  defendant  transmitted  cer- 
tain instructions  to  Sinclair  respecting  the  government  of  the 
fort,  in  which  he  said : 

"You  are  to  pay  great  attention  to  the  Indians  resorting  to 
Michilimakinac,    or    furnished    with    necessaries    from    thence. 


1  In  Scott  V.  Lifford,  9  East,  347 
(1808),  a  bill  of  exchange  had  been 
presented  for  payment  by  plaintiff 's 
banker  on  June  4th,  and  returned 
on  June  5th  to  the  plaintiff,  who 
posted  a  notice  of  dishonor  to  de- 
fendant on  June  6th.  The  trial 
judge  left  it  to  the  jury  to  deter- 
mine whether  the  notice  had  been 
given  in  a  reasonable  time.  There 
was  a  verdict  for  plaintiff  and  de- 
fendant moved  for  a  new  trial. 

Lord  Ellenborough,  C.  J.,  said, 
I  cannot  say  that  the  holder  on  the 
return  of  the  bill  dishonored  to  him 
is  bound,  omissis  omnibus  aliis  ne- 
gotiis,  to  post  off  immediately  with 


notice:  if  reasonable  diligence  has 
been  used,  it  is  sufficient. 

Gross,  J.  Whether  due  diligence 
has  been  used  is  a  question  of  law; 
but  judges  may  take  the  opinion 
of  a  jury  as  to  what  is  convenient 
in  the  manner  of  giving  notice. 

Le  Blanc,  J.  It  cannot  be  con- 
tended that  a  banker  ought  to  give 
notice  of  the  dishonor  to  any  but 
his  customer  for  whom  he  held  the 
bill:  and  I  cannot  rule  that  the 
holder  of  a  bill  may  not  avail  him- 
self of  the  conveyance  by  the  two- 
penny post. 

Eule  refused. 


Sec.  7.]  macbeath  v.  haldimand.  435 

Endeavor  to  preserve  them  in  good  humor,  and  attach  them  by 
every  means  in  your  power  to  the  king's  interest." 
In  a  further  part  of  the  same  instructions  he  added : 
"You  will  draw  bills  of  exchange  for  defraying  the  con- 
tingencies incident  to  that  post  in  the  manner  practised  by 
Major  De  Peyster  (an  officer  on  whom  that  command  had  been 
before  conferred),  taking  care  to  moderate  and  reduce  those  ex- 
penses, as  far  as  can  be  done  without  injuring  the  king's 
service." 

For  some  time  Sinclair  employed  one  Grant  to  distribute 
presents  among  the  Indians,  and  to  procure  military  stores,  etc., 
for  the  use  of  the  garrison;  and,  to  defray  these  and  other 
expenses,  drew  bills  of  exchange  upon  the  governor,  according 
to  his  instructions.  When  these  accounts  came  to  the  defendant 
he  made  objections  to  several  of  the  articles  as  unnecessary 
and  exorbitant;  and  soon  after  recommended  the  plaintiff  to 
Sinclair  by  a  letter  dated  the  16th  May,  1782,  of  which  the 
following  is  an  extract :  *  *  *  [Then  follows  an  extended  corre- 
spondence between  the  parties  on  the  subject  of  furnishing 
supplies,  and  in  regard  to  the  plaintiff's  bills  for  supplies 
furnished.] 

BuLLER,  Justice,  after  reporting  the  above  facts,  said  that  he 
had  been  of  opinion  at  the  trial,  that,  the  goods  in  question  having 
been  supplied  for  the  use  of  government,  and  the  defendant  not 
having  personally  undertaken  to  pay,  the  plaintiff  ought  to  be 
nonsuited.  That  it  appeared  to  him  that  the  plaintiff  had  acted 
with  the  defendant  solely  in  the  character  of  commander-in-chief, 
considering  him  as  the  agent  of  government.  That  all  the  letters 
imported  it  to  be  a  transaction  on  the  part  of  government ;  and 
that  the  accounts  confirmed  it.  But  the  plaintiff's  counsel  ap- 
pearing for  their  client  when  he  was  called,  he  left  the  question 
to  the  jury,  telling  them  that  they  were  bound  to  find  for  the 
defendant  in  point  of  law.  And  upon  their  asking  him  M'hether, 
in  the  event  of  the  defendant's  not  being  liable,  any  other 
person  was,  he  told  them  that  was  no  part  of  their  consideration; 
but,  being  willing  to  give  them  any  information,  he  added,  that 
he  was  of  opinion  that,  if  the  plaintiff's  demand  were  just,  his 
proper  remedy  was  by  a  petition  of  right  to  the  crown.  On 
which  they  found  a  verdict  for  the  defendant. 

The  rule  for  granting  a  new  trial  was  moved  for  on  the  mis- 
direction of  the  judge  upon  two  points : 


436  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

First,  that  the  defendant  had  by  his  own  conduct  made  himself 
personally  liable,  which  question  should  have  been  left  to  the 
jury. 

Secondly,  that  the  plaintiff  had  no  remedy  against  the  crown 
by  a  petition  of  right,  on  the  supposition  of  which  the  jury 
had  been  induced  to  give  their  verdict. 

Lord  Mansfield,  Ch.  J.  The  only  question  before  the  court 
is,  whether  the  defendant  be  liable  or  not  in  this  action  ?  If  he 
be,  the  plaintiff  must  recover;  if  not,  no  consideration  respecting 
the  plaintiff's  remedy  against  any  other  party  can  induce  the 
court  to  make  him  so. 

There  is  no  color  to  say  that  he  is  liable  in  his  character  of 
commander-in-chief.     *     *     * 

In  the  present  case  it  was  notorious  that  the  defendant  did  not 
personally  contract ;  the  plaintiff  knew,  at  the  time  that  he  fur- 
nished the  stores,  that  they  were  for  the  use  of  government ;  and 
he  afterwards  made  government  debtor  in  his  bills. 

But  it  has  been  urged  that  the  defendant  made  himself  liable 
after  the  debt  was  contracted.  In  my  opinoin  there  is  no  ground 
for  such  an  argument.    The  evidence  does  not  warrant  it. 

Then  it  was  objected,  that  whether  the  defendant  had  made 
himself  liable  or  not  was  a  question  which  ought  to  have  been 
left  to  the  jury  to  decide.  But  there  was  no  evidence  which  was 
proper  for  their  consideration ;  for  the  evidence  consisting  alto- 
gether of  written  documents  and  letters  which  were  not  denied, 
the  import  of  them  was  matter  of  law  and  not  of  fact.  Therefore 
I  am  of  opinion  that  the  verdict  should  stand. 

WiLLES,  J.  I  think,  under  all  the  circumstances  of  the  present 
case  that  the  defendant  is  not  personally  liable.  The  goods  were 
furnished  for  the  use  of  the  crown;  government  was  made 
debtor;  and  all  the  letters  speak  of  the  transaction  as  having 
been  considered  in  that  light.  Then  if  the  defendant  were 
liable,  his  person  and  property  would  be  subject  to  an  execution, 
and  he  must  afterwards  apply  to  government  for  a  reimburse- 
ment, which  would  he  no  satisfaction  to  him  for  the  inconven- 
ience he  had  been  put  to. 

The  letter  from  the  defendant's  secretary  shows  that  what  he 
did  was  under  the  direction  of  government,  and  that  the  fund, 
out  of  which  the  plaintiff  was  to  be  paid,  was  the  treasury.  And 
though  I  consider  the  faith  of  government  as  pledged  for  the 


i 


Sec.  7.]  macbeath  v.  haldimand,  437 

acts  of  the  defendant,  yet  I  cannot  consider  him  as  personally 
answerable. 

As  to  the  objection  that  this  should  have  been  left  to  the  jury, 
it  is  decisive  that  this  question  comes  before  the  court  on  a 
motion  to  set  aside  the  verdict,  and  not  a  nonsuit.  There  was  no 
other  evidence  but  letters,  which  were  before  the  jury,  and  the 
judge  had  a  right  to  give  his  opinion  upon  them.  The  construc- 
tion of  deeds  is  a  matter  of  law,  but  that  of  letters  is  proper  for 
the  consideration  of  the  jury. 

BuLLER,  J.  I  do  not  agree  with  my  brother  Willes  as  to  the 
construction  of  letters.  If  they  be  written  in  so  dubious  a 
manner  as  to  be  capable  of  different  constructions,  and  can  be 
explained  by  other  transactions,  the  whole  evidence  must  be 
left  to  the  jury  to  decide  upon ;  for  they  are  to  judge  of  the  truth 
or  falsehood  of  such  collateral  facts  which  may  vary  the  sense  of 
the  letters  themselves ;  but  if  they  be  not  explained  by  any  other 
circumstances,  then,  like  deeds  or  other  written  agreements,  the 
construction  of  them  is  a  mere  matter  of  law.^ 

In  W'hat  character  then,  as  appears  from  these  documents,  did 
the  defendant  act  throughout  this  business?  It  is  true  that  he 
gave  the  orders  to  Sinclair,  and  that  everything  which  the  plain- 
tiff did  was  pursuant  to  directions  from  the  latter,  whom  he  was 
instructed  to  obey ;  but  these  orders  did  not  flow  from  the  defend- 

1  Terry,  Anglo-American  Law,  does,  is  to  look  at  the  words  and 
§  71,  Questions  of  Construction  :  say,  '  In  our  opinion  the  person 
* '  Questions  of  construction  are  who  used  these  words  meant  to  con- 
as  to  the  meaning  conveyed  by  vey  such  and  such  a  meaning. ' 
certain  expressions.  They  occur  This  is  nothing  but  a  decision  about 
most  often  with  regard  to  written  a  fact.  Any  person  of  equal  intel- 
documents.  Such  a  question  may  ligence  but  knowing  nothing  of  law 
be  one  of  pure  law.  The  rule  ex-  could  decide  it  as  well  as  the  judge, 
pressed  in  the  maxim  ut  res  vuleat  It  is  a  decision  as  to  the  existence 
quam  pereat  or  that  of  taking  of  a  state  of  fact  as  specific  and  in- 
words  contra  proferentem,  as  also  capable  of  being  reduced  to  rule 
the  purely  arbitrary  rules  fixing  the  as  the  fact  that  when  A  discharged 
meaning  of  certain  particular  his  gun  he  intended  to  hit  B.  It  is 
words  and  phrases  above  mentioned  true  that  there  exists  a  general  rule, 
(see  section  62),  are  ordinary  rules,  which  is  really  one  of  law,  that  the 
of  law,  and  when  any  one  of  them  intention  of  the  parties  is  to  govern, 
can  be  applied  the  construction  be-  But  this  gives  no  aid  in  finding  out 
comes  matter  of  law.  But  there  what  that  intention  is.  It  simply 
are  many  cases  where  no  rule  at  tells  what  the  judge  is  to  do  after 
all  can  be  used,  where  all  that  the  he  has  astertained  the  party's  in- 
court   can   do,   and  what   it   in   fact  tention. ' ' 


I 


438  CONDUCT   OP   TPIE   TRIAL.  [ChAP.    IV. 

ant  in  his  own  personal  character,  but  as  governor  and  agent  for 
the  public ;  and  so  the  plaintiff  himself  considered  it.  And  in 
any  case  where  a  man  acts  as  agent  for  the  public,  and  treats  in 
that  capacity,  there  is  no  pretense  to  say  that  he  is  personally 
liable. 

Rule  discharged.^ 


DONAHUE  V.  WINDSOR,  ETC.,   INS.   CO. 

56  Vermont,  374.      [1883.] 

Taft,  J.  *  *  *  The  request  that  a  verdict  be  directed, 
because  "no  notice  in  writing  was  forthwith  after  the  fire  given 
to  the  defendant's  office,"  as  required  by  the  section  quoted, 
the  plaintiffs  insist,  was  properly  refused,  as  it  does  not  embody 
a  sound  legal  proposition,  for  the  reason  that  the  plaintiffs  were 
entitled  to  a  reasonable  time  to  give  such  notice,  and  what  was 
such  time  was  a  question  of  fact  for  the  jury,  and  therefore  the 
defendant  had  no  right  to  have  the  matter  ruled  upon  as  a 
question  of  law.  It  was  conceded  that  the  property  burned  on 
the  24th  day  of  September,  1879,  and  that  the  only  notice  of 
the  loss  given  the  defendants  was  dated  the  16tli  day  of  October 
afterwards,  more  than  twenty-two  days  after  the  fire.  The 
question  was  presented  whether  that  was  a  compliance  with  the 
requirement  as  to  notice,  that  it  should  be  given  forthwith.  It 
is  unnecessary  to  set  forth  the  reasons  of  such  a  condition ;  they 
are  patent  to  all ;  a  delay  of  several  days  or  weeks  in  giving 
notice  may  obliterate  all  those  traces  of  evil  design  in  the  insured 
which  accompany  fraudulent  fires  and  render  an  investigation 
of  their  causes,  or  the  damages  resulting  from  them,  exceedingly 
difficult ;  the  importance  of  prompt  notice  is  too  clear  to  require 
argument  or  illustration  to  prove  it.  The  condition  that  the 
insured  should  give  the  company  notice  forthwith  should  be 
construed  liberally  in  favor  of  the  insured.  He  should  give  the 
notice  with  due  diligence  and  within  a  reasonable  time,  without 
unnecessary  delay,  under  all  the  circumstances  of  the  ease.  St. 
Louis  Ins.  Co.  v.  Kyle,  and  Inman  v.  Ins.  Co.,  supra;  Peoria  M.  & 

2  See   also   Key  v.    Cotesworth,   7 
Exch.   595. 


Sec.  7.] 


DONAHUE    V.    WINDSOR,   ETC.,    INS.    CO. 


439 


F.  Ins.  Co.  V.  Lewis,  18  111.  553 ;  Niagara  Fire  Ins.  Co.  v.  Scam- 
mon,  111.,  S.  C,  11  Ins.  Law  Jour.  614;  Phillips  v.  Protection 
Ins.  Co.,  14  Mo.  220 ;  Edwards  v.  Baltimore  Ins.  Co.,  3  Gill,  176. 

The  question  of  whether  a  party  has  used  due  diligence  or  not 
in  giving  notice  has  sometimes  been  held  to  be  a  question  of  law ; 
particularly,  in  those  cases  where  all  the  facts  and  circumstances 
are  admitted  or  established,  as  where  they  are  conceded  or  shown 
by  the  pleadings.  Columbian  Ins.  Co.  v.  Lawrence,  supra.  But 
upon  a  jury  trial  where  such  facts  and  circumstances  are  open 
for  the  ascertainment  of  a  jury,  we  think  it  should  be  left  to 
them  to  determine  as  a  question  of  fact.  The  courts  in  this 
State  have  always  adopted  this  rule  in  all  questions  of  doubt 
depending  upon  a  general  inference  from  a  multiplicity  of 
particular  facts,  and  where  the  law  has  fixed  no  rule;  such  are 
questions  of  due  diligence,  reasonable  time,  probable  cause   etc.^ 


1  Terry,  Anglo-American  Law, 
§  70 :  "  There  is  another  much 
less  simple  class  of  cases  where  con- 
fusion arises  between  law  and  fact. 
The  questions  here  are  really  ques- 
tions of  fact,  but  they  are  always 
decided  by  the  court,  not  by  the 
jury,  and  are  usually  called  ques- 
tions of  law.  We  may  therefore 
for  convenience  sake  designate  them 
as  questions  of  'curial  fact.'  They 
include  some  questions  of  construc- 
tion, some  of  reasonableness,  some 
of  the  admissibility  of  evidence, 
and  a  few  others." 

§  72 :  "  Questions  of  reasonable- 
ness come  up  in  various  connections. 
Most  questions  of  negligence  and 
not  a  few  of  malice,  probable  cause, 
fraud  and  also  some  others  will  be 
found  on  analysis  to  turn  on  one  of 
reasonableness,  and  this  is  often  one 
of  curial  fart. 

"A  question  of  law  in  the  true 
sense  is  one  that  can  be  decided  by 
the  application  to  the  specific  facts 
proved  to  exist — here  the  conduct 
of  some  person  and  the  circum- 
stances in  which  he  acted  or  omitted 
to     act — of      a     pre-existing     rule. 


Such  a  rule  must  contain  a  de- 
scription of  the  kind  of  circum- 
stances to  which  it  is  to  apply  and 
of  the  kind  of  conduct  required. 
Some  definable  combinations  of 
facts  occur  so  often  that  they  can 
be  foreseen  and  provided  for,  for 
example,  the  sets  of  facts  that  con- 
stitute the  making  a  contract,  the 
taking  possession  of  things,  the  re- 
ceiving a  fund  to  be  paid  over  to 
another.  In  these  the  important 
facts  are  few.  But  in  many  cases 
the  group  of  facts  that  would  need 
to  be  provided  for  is  so  large  and 
complicated  or  of  such  infrequent 
occurrence  that  it  fs  not  possible  or 
not  worth  while  to  attempt  to  fore- 
see them  or  to  prescribe  any  deter- 
minate line  of  conduct.  Thus  a 
carrier  by  railroad  in  order  to  pro- 
vide properly  for  his  passenger's 
safety  has  to  look  after  a  hundred 
different  items  never  twice  the 
same.  It  would  be  out  of  the  ques- 
tion to  try  to  fix  by  statute  the  ex- 
act amount  and  kind  of  repairs 
that  should  be  put  upon  each  bridge 
or  the  exact  manner  in  which  every 
engineer    should    manage    his    loco- 


440 


CONDUCT   OP    THE   TRIAL. 


[Chap.  IV. 


Sessions  v.  Newport,  23  Vt.  9.  It  may  be  a  question  of  law 
where  the  inference  is  one  which  admits  of  no  doubt  so  that  it  will 
strike  all  minds  alike.  See  also  Starkie  on  Ev.,  451.  note  (p). 
The  Supreme  Court  of  Connecticut  in  Lockwood  v.  Ins.  Co.,  46 
Conn.  553,  says :  ' '  Extreme  cases  either  way  may  be  easily 
determined.  Between  them  there  is  a  wide  belt  of  debatable 
ground,  and  cases  falling  within  it  are  governed  so  much  by  the 
peculiar  circumstances  of  each  case  that  it  is  much  better  to 
determine  the  matter  as  a  question  of  fact."  Such  being  the 
rule,  the  defendant  had  no  right  to  have  the  question  passed 
upon  as  one  of  law^,  and  his  request  was  properly  refused.  But 
the  refusal  did  not  terminate  the  duty  of  the  court  in  the  matter. 
Whether  the  insured  had  given  notice  forthwith  was  a  point 
material  to  the  decision  of  the  case ;  without  proof  of  that  fact 
the  plaintiff  could  not  recover.  There  was  evidence  upon  that 
point,  and  it  was  the  duty  of  the  court  to  charge  correctly  and 
fully  whether  requested  to  do  so  or  not.  Vaughan  v.  Porter, 
16  Vt.  266.  A  party  is  entitled  to  such  a  charge  as  the  facts 
in  the  case  require.     Hazard  v.  Smith,  21  Vt.  123.     The  County 


motive.  But  where  the  law  has  laid 
down  no  rule  there  can  be  no  ques- 
tion of  law.  Now  in  most  of  such 
complicated  cases  the  law  sets  up 
simply  the  general  rule  of  reason- 
able conduct.  This  is  analogous  to 
the  general  rule  of  construction 
that  the  intent  of  the  parties  shall 
prevail:  it  tells  what  ought  to  be 
done  when  the  proposed  conduct  has 
been  determined  to  be  reasonable 
or  not,  but  it  does  not  help  the  de- 
termination whether  it  is  reason- 
able. The  rule  usually  propounded 
to  act  as  a  reasonable  and  prudent 
man  would  in  the  circumstances, 
still  leaves  open  the  question  how 
such  a  man  would  act.  No  general 
rule  can  be  imagined  which  should 
inform  a  man  how  fast,  he  being 
such  a  horseman  and  riding  such  a 
horse  as  he  is,  it  is  reasonable  for 
him  to  ride  through  a  street  of 
such  width  and  crowded  to  such  an 
extent  with  people  disposed  in  such 


a  manner  as  that  in  which  he  finds 
himself.  The  question,  was  the 
specific  coiiduct  of  the  specific  per- 
son in  the  specific  circumstances 
reasonable  or  not,  must  usually  re- 
main as  a  question  which  is  really 
one  of   fact. 

' '  When  the  reasonableness  or  un- 
reasonableness of  the  conduct  is 
very  plain,  the  court  will  decide  it; 
when  it  seems  to  the  court  to  fairly 
admit  of  doubt,  it  will  be  handed 
over  to  the  jury.  This  is  expressed 
in  such  sayings  as  that  the  court 
must  decide  whether  there  is  any 
evidence  of  negligence,  malice, 
fraud,  want  of  probable  cause,  etc., 
or  that  the  court  must  decide 
whether  the  facts  may  amount  to 
negligence,  etc.,  and  the  jury 
whether  they  do.  In  any  case  the 
court  cannot  avoid  exercising  a 
tolerably  wide  discretion  whether 
to  decide  the  question  itself  or  not. ' ' 


Sec.  7.]  parker  v.  ibbetson.  441 

Court  is  always  bound  to  charge  the  jury  according  to  the  rules 
of  law  whether  specifically  requested  so  to  do  or  not.  Redpield, 
J.,  in  Buck  v.  Squires,  23  Vt.  498;  and  see  16  Vt.  579;  28  Vt 
222;  39  Vt.  565;  40  Vt.  495. 

The  question  whether  the  notice  required  was  given  forthwith 
should  have  been  submitted  to  the  jury;  but  the  point  was 
ignored  by  the  court,  and  no  reference  was  made  to  it  in  the 
charge. 

Judgment  reversed  and  cause  remanded  for  a  new  trial.^ 


PARKER  V.  IBBETSON. 

4  Common  Bench  (N.  S.),  346.      [1858.] 

This  was  an  action  against  the  defendant  for  wrongfully  dis- 
charging the  plaintiff  from  his  service.     *     *     * 

The  cause  was  tried  before  Cresswell,  J.,  at  the  sittings  in 
London  after  last  Michaelmas  term.  It  appeared  that  the  de- 
fendant, who  was  a  woolen  merchant  at  Leeds,  having  a  place  of 
business  in  London,  engaged  the  plaintiff  to  serve  him  in  the 
capacity  of  agent  or  representative  there,  upon  the  terms  con- 
tained in  the  following  memorandum : 

"Memorandum  of  agreement  made  between  Henry  Ibbetson 
&  Co.,  of  Leeds,  of  the  first  part,  and  Richard  Awood  Parker,  of, 
etc.,  of  the  second  part.  The  aforesaid  Richard  Awood  Parker 
engages  to  serve  the  said  Henry  Ibbetson  &  Co.  as  agent  or 
representative,  at  the  salary  of  £150  per  annum  in  consideration 
thereof.  Also  provided  at  the  end  of  the  year  the  said  H. 
Ibbetson  &  Co.  find  the  said  Richard  Awood  Parker  has  done 
sufficient  business  to  justify  them  in  recompensing  by  making  up 
his  salary  to  £180  to  do  so,  being  a  donation  of  £30  to  his  present 
stipulated  amount  of  £150.  As  witness  our  hands  this  30th  day 
of  January,  1857. 

(Signed)  "Henry  Ibbetson  &  Co. 

' '  Richard  Awood  Parker.  ' ' 

The  plaintiff  continued  in  the  service  of  the  defendant  under 
this  agreement  until  the  1st  of  August    (receiving  his  salary 

2  See  also  Harden  v.  Ing.  Co.,  164 
Mass.  304;  compare  McFarland  v. 
Accident  Co.,  124  Mo.  204. 


442  CONDUCT   OF   THE    TRIAL.  [ChAP.    IV, 

monthly),  when  the  defendant  gave  him  a  month's  notice  to 
quit.  For  this  dismissal,  which  the  plaintiff  contended  was 
wrongful,  and  in  contravention  of  the  agreement,  the  present 
action  was  brought. 

On  the  part  of  the  defendant,  several  witnesses  were  called  to 
prove  a  custom  in  the  particular  trade  to  dismiss  at  a  month's 
notice,  though  the  engagement  was  at  a  yearly  salary.  *  *  * 
In  his  summing  up,  the  learned  judge  instructed  the  jury  in 
substance  as  follows:  *  *  *  The  parties  first  agree  for  a 
general  hiring,  at  a  yearly  salary;  then  they  add  a  proviso, 
that,  if  the  employer  shall  at  the  end  of  the  year  consider  the 
agent  deserving  of  it,  he  shall  be  rewarded  with  a  donation  of 
£30.  Now,  the  only  legitimate  effect  of  that — assuming  the  cus- 
tom to  have  been  established — would  seem  to  be,  that,  by  intro- 
ducing that  stipulation  into  the  contract,  they  meant  the  custom 
to  be  excluded.  The  first  question,  then,  for  your  consideration 
will  be,  whether  such  a  custom  as  alleged  exists  in  the  particular 
trade ;  and  the  second  question  will  be,  whether  the  contract  was 
made  with  reference  to  the  custom,  or  was  a  special  contract  to 
which  the  custom  did  not  apply.  If  you  think  the  evidence 
establishes  the  custom,  it  merely  remains  for  you  to  consider 
whether  you  infer  from  the  latter  part  of  the  agreement  that  the 
parties  meant  to  exclude  the  application  of  the  custom  in  the 
particular  case.  If  you  think  they  did  not  contract  with  that 
intention,  the  defendant  will  be  entitled  to  your  verdict.  If, 
on  the  other  hand,  you  think  the  custom  is  not  established,  then 
the  dismissal  of  the  plaintiff  before  the  expiration  of  the  year  is 
not  justified,  and  he  will  be  entitled  to  your  verdict,  with  such 
damages  as  you  may  think  him  fairly  entitled  to  for  such  wrong- 
ful determination  of  the  contract. 

The  jury  found,  first,  that  the  custom  was  proved;  secondly, 
that  the  hiring  was  a  special  hiring,  to  which  the  custom  did  not 
apply ;  and  thereupon  they  found  for  the  plaintiff,  damages  £70. 

Hugh  Hill,  Q.  C,  in  Hilary  term  last,  obtained  a  rule  nisi  to 
enter  a  verdict  for  the  defendant,  on  the  ground  that  the  jury 
having  found  the  fact  of  the  existence  of  the  custom  for  the 
defendant,  their  finding  as  to  the  special  terms  of  the  contract 
was  immaterial ;  or  for  a  new  trial,  on  the  ground  of  misdirection, 
inasmuch  as  it  was  not  a  question  for  the  jury  whether  the 
special  terms  of  the  contract  excluded  the  custom,  but  the  eon- 


Sec.  7.]  parker  v.  ibbetson.  443 

struction  of  the  contract  was  for  the  court,  and,  according  to 
the  true  construction,  the  custom  was  not  excluded. 

Crowder,  J.  I  am  of  opinion  that  this  rule  must  be  made 
absolute.  The  question  arises  in  an  action  brought  upon  an 
agreement  entered  into  between  a  clerk  or  servant  and  his 
employer  in  a  certain  trade,  which  agreement  is  in  writing;  and 
the  contention  at  the  trial  was  as  to  the  existence  of  the  custom 
stated  in  the  fifth  plea,  and  its  application  to  the  contract  before 
the  court.  The  jury  were  asked  certain  questions,  and  invited 
to  draw  certain  conclusions.  These  were,  whether  the  custom 
was  proved,  and  whether,  if  proved,  it  was  applicable  to  the 
special  terms  of  this  contract.  On  the  part  of  the  defendant  it 
is  contended  that  this  latter  was  not  a  question  for  the  jury,  but 
for  the  court ;  and  I  am  of  that  opinion.  Looking  at  the  evidence, 
it  seems  to  have  been  established  tliat  there  was  a  general  custom 
in  the  trade  that  a  yearly  hiring  might  be  put  an  end  to  by  either 
party  upon  a  month's  notice.  It  is  insisted  on  the  part  of  the 
plaintiff  that,  assuming  such  a  custom  to  exist,  the  special  terms 
of  this  agreement  exclude  the  application  of  it  to  this  case.  It 
seems  to  me  that  there  is  no  foundation  for  that  argument.  The 
first  part  of  the  contract  amounts  simply  to  an  engagement  on  the 
part  of  the  plaintiff  to  serve  the  defendant  as  agent  at  the  salary 
of  £150  per  annum;  then  follows  a  proviso  that  if  "at  the  end 
of  the  year  the  said  Henry  Ibbetson  &  Co.  (the  defendant)  find 
the  said  R.  A.  Parker  (the  plaintiff)  has  done  sufficient  business 
to  justify  them  in  recompensing  by  making  up  his  salary  to 
£180  to  do  so,  being  a  donation  of  £30  to  his  present  stipulated 
amount  of  £150."  Reading  this  agreement — and  its  construc- 
tion is  for  the  court,  and  not  for  the  jury — it  seems  to  me  to  be 
simply  an  agreement  for  a  yearly  hiring  at  a  yearly  salary ;  and 
that  there  is  nothing  in  the  proviso  to  alter  the  nature  and 
character  of  the  agreement;  it  is  a  mere  statement  that  the 
defendant  will  at  the  end  of  the  year,  if  he  shall  see  fit,  make 
the  plaintiff  a  present  of  £30.  It  is  clear  that  this  £30  could 
not  have  been  recovered  by  action,  if  the  service  had  lasted  until 
the  end  of  the  year.  The  simple  question  is,  whether,  looking 
at  the  custom  proved,  which  is  general,  there  is  anything  in  the 
written  agreement  to  exclude  it.  I  see  nothing  in  it  that  can 
have  that  effect.  The  proviso  cannot  exclude  it;  that  has  no 
reference  to  dismissal.  Then,  if  there  is  nothing  in  the  contract 
that  is  inconsistent  with  the  application  of  the  general  custom, 


444  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

it  is  the  same  as  if  the  custom  had  formed  part  of  the  written 
agreement.  This  ease  must  follow  the  ordinary  rule,  that, 
wherever  a  contract  is  made  in  a  particular  trade,  all  customs 
which  regulate  that  trade  are  tacitly  incorporated  into  the  con- 
tract, unless  by  express  terms  excluded.  There  was  nothing  to 
warrant  the  conclusion  of  the  jury,  and  consequently  the  rule 
will  be  made  absolute,  not,  however,  to  enter  a  verdict  for  the 
defendant,  no  leave  having  been  reserved,  but  for  a  new  trial. 

WiLLES,  J.  I  am  entirely  of  the  same  opinion.  *  *  *  The 
custom,  being  proved,  becomes  part  and  parcel  of  the  contract. 
The  jury  had  no  right  to  take  upon  themselves  to  say  that  the 
special  contract  excluded  the  custom.  ^  The  evidence  upon  which 
that  conclusion  was  founded  does  not  in  fact  negative  the  appli- 
cation of  the  custom  to  a  hiring  under  a  contract  like  this.  The 
witness  merely  stated  that  he  did  not  know  of  an  instance 
where  under  such  an  agreement  as  the  present  the  custom  had 
been  acted  upon. 

Byles,  J.  In  eases  of  this  nature,  two  questions  generally 
arise^ — the  one,  a  question  of  law,  whether  the  terms  of  the 
agreement  may  admit  or  must  necessarily  exclude  the  custom; 
the  other,  one  of  fact,  whether,  if  the  agreement  may  admit 
the  custom,  the  custom  extends  to  the  particular  agreement. 
I  do  not  therefore  see  that  the  learned  judge  was  wrong  in 
leaving  this  latter  question  to  the  jury.  The  evidence  of  the 
custom  was  irresistibly  strong,  and,  although  the  jury  might, 
upon  proper  evidence,  have  found  a  limited  custom,  there  was 
no  evidence  of  any  such  limitation  here. 

E^de  absolute  for  a  new  trial. 

1  WiLLES,  J.,  in  Berwick  v.  Hors-  of  all  written  documents  is  for  the 

fall,    4    C.    B.     (N.    S.)    450:    "It  court,  and  not  for  the  jury.     It  was 

turned  out  that  the  document  which  for    the    judge,    therefore,    to    say 

conferred   that   authority   upon   him  whether  or  not  there  was   such  au- 

was  lost.     But  the  fact  of  a  docu-  thority.       He     thought     there    was. 

ment  being  lost,  does  not  make  the  The    jury    thought    there    was    not. 

construction  of  its  contents  a  ques-  That,    however,     was     quite    imma- 

tion    for   the   jury.      The    true   rule  terial,  the  question  being  solely  for 

is  laid  down  in  Neilson  v.  Harford,  the  court." 
8   M.   &   W.   806.     The   construction 


Sec.  7.]  Cunningham  v.  washburn.  445 

CUNNINGHAM  v.   WASHBURN. 

119  Massachusetts,  224.     [1875.] 

Contract  against  W.  A.  AVashburn  and  Frederick  E.  Abbott, 
upon  an  instrument  under  seal,  dated  October  15,  1871,  and 
signed  by  the  plaintiff  and  the  defendants,  reciting  that  the 
defendants  were  the  owners  of  certain  land  in  the  city  of 
Worcester,  with  a  cottage  standing  thereon,  which  the  defendants 
desired  to  remove  to  another  part  of  the  land,  and  providing  as 
follows  : 

"Now,  therefore,  said  Cunningham,  being  a  practical  carpenter 
and  building  mover,  in  consideration  of  four  hundred  and  fifty 
dollars  being  paid  to  him,  promises  and  agrees  to  move  said 
building  back  upon  the  rear  part  of  the  lot,  turn  it  half  around, 
and  front  it  on  Barclay  Street,  dig  and  stone  a  cellar  to  set  it  on, 
and  to  finish  said  house  ready  for  occupancy,  doing  the  work  well 
even  to  all  the  rooms,  painting  the  house  one  coat  of  good  oil  and 
lead  paint  on  the  outside,  and  two  good  coats  of  oil  and  lead  on 
the  inside,  and  putting  blinds  on  the  windows  outside,  furnishing 
and  finding  all  the  stock  and  materials." 

The  declaration  also  contained  a  count  upon  an  account  an- 
nexed for  stone  and  sheathing  boards  furnished,  these  not  being 
included  in  the  contract. 

Trial  in  the  Superior  Court,  before  Dewey,  J.,  who  allowed 
a  bill  of  exceptions  in  substance  as  follows : 

The  defendant  Washburn  testified  that  he  went  to  the  house 
at  the  time  one  Pike,  the  plaintiff's  agent,  was  building  the  cellar 
wall  and  using  the  new  stones ;  that  he  asked  Pike  why  he  was 
using  noM^  stones  instead  of.  the  old,  and  Pike  said  that  Abbott 
had  ordered  them  to  be  put  in,  and  he,  Washburn,  then  said 
that  if  Abbott  had  ordered  them  he  might  pay  for  them. 

The  plaintiff  testified  that  he  asked  Washburn  to  pay  for  the 
job  six  weeks  after  it  was  finished,  and  he  told  him  he  was  not 
going  to  pay  for  those  new  stones  anything  extra ;  that  as  Abbott 
liad  ordered  them  he  might  pay  for  them. 

The  defendant  asked  the  judge  to  rule  that  the  plaintiff  could 
not  maintain  his  action  on  the  written  contract,  it  being  admitted 
by  the  plaintiff  that  he  had  not  completed  the  contract  if  it 
required  him  to  build  a  water-closet.  The  plaintiff  admitted  that 
he  refused  to  put  a  water-closet  into  the  house,  and  left  the 


446  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

house  without  putting  one  in ;  the  defendants  requested  the  judge 
to  rule  that  the  contract  as  a  matter  of  law  required  that  a 
water-closet  or  privy  should  be  built.  The  defendants  also  asked 
the  judge  to  rule  that  the  claim  for  extra  stone  could  not  be 
maintained  against  the  defendants  jointly. 

The  judge  declined  to  give  either  of  the  rulings  requested,  but 
instructed  the  jury  as  follows:  "In  relation  to  the  defendants' 
claim  that  the  plaintiff  wilfully  abandoned  his  contract  before 
it  was  completed,  and  that  the  defendants  were  therefore  not 
liable,  such  is  the  rule  of  law,  where  wilfully,  without  cause,  a 
party  neglects  to  complete  and  abandons  his  contract.  If  the 
plaintiff  had  wilfully  abandoned  the  work,  leaving  the  house  not 
finished  according  to  the  contract,  he  could  not  recover.  But  if 
a  party  in  good  faith  proceeds  under  a  special  contract,  and 
doing  what  he  reasonably  supposes  is  required,  and  substantially 
completes  it,  and  the  other  party  accepts  the  benefit  of  the  work, 
although  the  contractor  may  not  have  done  all  that  was  really  his 
duty,  or  in  the  exact  manner  required,  still  he  may  maintain  ftn 
action  for  his  labor  and  materials,  but  he  cannot  necessarily 
recover  the  cost  of  his  materials  or  the  ordinary  price  of  labor. 
The  party  for  whom  the  work  was  done  is  entitled  to  have  de- 
ducted from  the  contract  price  the  difference  between  the  value 
of  the  work  as  done,  and  its  value  if  it  had  been  done  in  accord- 
ance with  the  contract. 

"In  relation  to  the  proper  construction  and  interpretation  of 
the  contract,  it  is  a  question  of  law  for  the  court  to  decide.  The 
contract  provides  that  the  plaintiff  should  'finish  the  house  ready 
for  occupancy,'  and  then  proceeds  to  state  the  details  as  to  a 
portion  of  the  work;  as  far  as  the  manner  of  doing  the  work 
and  the  kind  of  work  is  specified,  it  is  to  be  done  as  thus  specified ; 
the  only  difficulty  arises  as  to  the  work  not  specified,  but  which 
is  required  by  the  provision  '  to  finish  said  house  ready  for  occu- 
pancy ; '  the  court  cannot,  as  a  matter  of  law,  give  you  the  details 
the  parties  have  omitted,  but  instructs  you  that  the  plaintiff 
would,  under  this  provision  of  the  contract,  be  bound  to  do  all 
things  that  would  be  reasonably  necessary  and  proper  to  make 
the  house  ready  for  occupation,  taking  into  consideration,  in 
determining  what  should  be  done,  the  character  of  the  house  he 
was  to  finish;  and  if  the  jury  find  that  he  omitted  anything 
specified  in  the  contract,  or  omitted  any  other  thing  that  was 
reasonably  required  to  have  such  house  as  is  referred  to  and 


Sec.  7.]  Cunningham  v.  washburn.  447 

described  in  the  contract  ready  for  occupancy,  then  he  has  not 
performed  his  contract  and  cannot  recover  upon  it." 

The  judge  also  instructed  the  jury,  that  ''in  order  to  entitle 
the  plaintiff  to  recover  for  the  stone  furnished,  you  must  be 
satisfied  that  Abbott  had  authority  from  Washburn  to  make  a 
chang-e  from  the  agreement  as  to  the  stone,  and  that  if  Abbott 
was  acting  for  both  in  relation  to  the  building  and  carrying  out 
the  contract,  with  a  general  authority  from  Washburn  to  make 
such  changes  as  he  deemed  best,  and  he  made  the  change  as  to 
the  stone,  Washburn  would  be  bound  thereby,  or  if  Washburn, 
having  knowledge  of  Abbott's  acts,  subsequently  ratified  the 
same. ' ' 

The  jury  found  for  tlie  plaintiff;  and  the  defendants  alleged 
exceptions. 

Devens,  J.  The  legal  interpretation  of  a  contract  is  for  the 
court,  which  is  to  determine,  where  the  words  are  unequivocal  in 
their  meaning,  what  it  imports,  and  what  are  the  obligations 
imposed  by  it.  As,  however,  words  and  phrases  are  often  used, 
which  are  technical  or  ambiguous,  and  sometimes,  also,  those 
which,  although  not  in  themselves  unintelligible,  require  knowl- 
edge of  the  subject,  in  connection  with  which  they  are  used,  to 
apply  them  intelligibly,  it  may  become  necessary  to  resort  to 
extrinsic  evidence  to  ascertain  thereby  the  intent  of  the  parties 
in  using  them,  in  order  that  the  contract  may  be  construed  in  the 
light  of  the  information  thus  acquired.  The  facts  thus  to  be 
inquired  into  are  determined  by  the  jury  under  the  direction 
of  the  court,  which  instructs  them  as  to  the  construction  to  be 
given  to  the  contract  according  to  the  various  aspects  in  which 
such  facts  may  present  themselves.  Eaton  v.  Smith,  20  Pick. 
150;  Burnham  v.  Allen,  1  Gray,  496;  Smith  v.  Faulkner,  12 
Gray,  251. 

Whether  the  phrase  "to  finish  said  house  ready  for  occupancy" 
was  one  which  w^ould  require  the  building  of  a  water-closet,  de- 
pended upon  certain  extrinsic  facts.  The  defendants  do  not 
object  to  the  instructions  given,  in  themselves,  but  contend  that 
the  court  should  have  received  the  evidence  of  carpenters,  and 
then,  upon  such  evidence,  have  decided  the  matter  without  sub- 
mitting it  to  the  jury.  This,  however,  would  have  taken  from 
the  jury  its  right  to  find  the  facts,  and  have  trespassed  upon 
its  province.  It  is  for  the  court  only  to  decide  the  law  upon 
the  facts  as  they  have  been,  or  as  they  may  be,  ascertained ;  and 


448  CONDUCT   OF   THE   TRIAL.  [ChAP.   IV. 

while  what  the  contract  requires  to  be  done  is  a  question  of  law, 
the  submission  of  the  case  to  the  jury  to  find  the  facts,  with 
proper  instructions  as  to  the  various  aspects  in  which  they  may 
present  themselves,  gives  to  the  court  the  construction  of  the 
contract  as  completely  as  if  the  jury  found  the  facts  specially 
and  the  court  afterwards  interpreted  the  contract  in  view  of  them 
as  found. 

In  Worcester  Medical  Institution  v.  Harding,  11  Cush.  285, 
relied  upon  by  the  defendants,  it  was  held  by  the  court,  as  a 
matter  of  legal  construction  of  the  peculiar  contract  in  that 
case,  that  a  full  completion  of  the  wall,  there  contracted  for, 
was  not  necessary,  but  only  such  completion  thereof  as  would 
be  necessary  for  the  purpose  of  putting  on  the  roof  of  the 
building ;  and  as  the  facts  in  regard  to  this  were  admitted,  there 
was  nothing  for  the  jury.  In  the  present  case,  what  the  contract 
required  to  be  done  could  not  be  determined  as  matter  of  law, 
except  by  determining  as  matter  of  fact  what  was  reasonably 
necessary  and  proper  to  be  done,  considering  the  character  of 
the  building  to  be  erected. 

The  ruling  upon  the  remaining  question  was  also  correct.  Al- 
though the  written  contract  required  the  plaintiff  to  furnish  all 
the  stone  for  the  cellars,  yet  it  was  competent  for  the  parties 
subsequently  to  agree  for  stone  of  an  extra  quality.  Under  the 
instruction  given,  the  jury  must  have  been  satisfied  that  Abbott 
had  authority  from  Washburn  to  make  this  change,  or  that 
Washburn,  with  a  knowledge  of  Abbott 's  acts,  subsequently  rati- 
fied them,  and  in  either  case  both  would  be  liable. 

Exceptions  overruled.'^ 


CRAWFORD  V.  OMAN  &  STEWART. 

34  South  Carolma,  90.     [1890.] 

Mr.  Justice  McIver.  On  the  22nd  of  December,  1884,  the 
plaintiffs  and  defendants  entered  into  a  written  agreement, 
styled  a  lease,  a  copy  of  which  is  set  out  in  the  "case,"  and 

1  Compare  N.  W.  Ins.  Co.  v.  Mus-  lem  of  what  constituted  ' '  habitual 
kegon  Bank,  122  U.  S.  501,  where  drunkenness"  within  the  meaning 
the  court  had  to  deal  with  the  prob-       of   a  life  insurance  policy. 


I 


Sec.  7.]  crawpord  v.  oman  &  stewart.  449 

should  be  embraced  in  the  report  of  this  case.  By  the  terms 
of  this  agreement  the  defendants,  amongst  other  things,  were 
to  have  the  exclusive  right  of  quarrying  granite  on  the  lands 
of  the  plaintiff  for  the  term  of  ten  years,  with  the  privilege 
to  defendants  of  renewal  for  another  term  of  five  or  ten  years 
at  their  election,  in  consideration  whereof  the  defendants  agreed 
to  pay  annually  to  the  plaintiffs  "one  cent  and  one-quarter  of 
one  cent  for  every  cubic  foot  of  granite  shipped  of  dimension 
stones  during  the  first  five  years  of  this  lease,  and  one  cent  and 
one-half  of  one  cent  per  cubic  foot  of  dimension  stones  during 
the  second  five  years,  and  all  subsequent  terms  of  this  lease. 
For  all  other  stones  shipped  not  dimension  stones  they  agree  to 
pay  fifty  cents  per  carload. ' ' 

The  defendants  having  worked  the  quarry  for  some  two  or 
three  years,  abandoned  it,  whereupon  this  action  was  commenced 
on  the  31st  of  January,  1889.  In  the  complaint  the  plaintiff 
undertook  to  state  two  causes  of  action,  the  first  for  breach  of 
the  written  contract  in  not  paying  the  price  agreed  upon  for  the 
stones  quarried,  and  the  second  for  damages  for  ceasing  to  work 
the  quarry ;  but  as  the  second  cause  of  action  has  been  practically 
eliminated  by  the  ruling  of  the  Circuit  Judge  on  the  motion  for 
a  new  trial,  to  which  no  exception  has  been  taken  by  the  plain- 
tiffs, we  are  confined  to  a  consideration  of  the  first  cause  of  action. 
In  support  of  this  cause  of  action  the  plaintiffs,  after  alleging 
the  making  of  the  written  contract,  substantially  as  above  stated, 
except  that  feature  which  prescribes  the  price  of  stone  shipped, 
other  than  dimension  stone,  alleges  that  defendants  "have  quar- 
ried two  hundred  thousand  blocks  of  granite,  known  as  'Belgian 
blocks;'  and  that  said  defendants  have  already  shipped  one 
hundred  and  ten  thousand  of  said  Belgian  blocks,  and  they  are 
ready  to  ship  and  are  preparing  to  ship  the  remaining  ninety 
thousand  of  said  blocks. ' '  They  then  proceed  to  allege  that  the 
200,000  Belgian  blocks  "so  quarried  by  the  defendants  are 
equivalent  to  thirty-six  thousand  cubic  feet  of  granite ;  that  said 
Belgian  blocks  are  '  dimension  stone ; '  and  that  there  is  due  and 
payable  to  the  plaintiffs  by  the  defendants,  under  said  agree- 
ment, upon  the  said  thirty-six  thousand  cubic  feet  of  stone  the 
sum  of  four  hundred  and  fifty  dollars, ' '  for  which  sum  judgment 
is  demanded. 

Testimony  was  adduced  tending  to  show  how  much  stone  had 
been  shipped  by  the  defendants,  how  much  was  at  the  quarry  cut 

H.  T.  P.— 29 


450  '  CONDUCT  OP   THE  TRIAL.  [ChAP.   IV. 

into  Belgian  blocks,  but  not  shipped,  and  also  as  to  what  was 
the  meaning  of  the  term  * '  dimension  stone, ' '  which  seems  to  be 
a  term  of  art,  as  to  which  there  was  considerable  conflict  among 
the  witnesses.  The  plaintiff,  Eobert  Crawford,  who,  as  agent 
for  his  wife,  his  co-plaintiff,  seems  to  have  had  entire  charge  of 
the  business,  testified  that  he  regarded  Belgian  blocks  as  dimen- 
sion stone,  but  there  is  no  testimony  that  the  defendants  so 
regarded  them.  The  circuit  judge  charged  the  jury  that  the 
defendants  were  liable  not  only  for  the  stone  actually  shipped 
by  them,  but  also  for  such  as  had  been  quarried  and  left  at  the 
quarry,  using  these  words:  "Whatever  was  quarried  and  ready 
for  shipment  may  be  considered  in  this  contract  as  articles 
shipped;"  and  as  to  the  rate  that  should  be  charged  for  the 
Belgian  blocks,  while  they  were  not  "dimension  stones,"  yet  if 
the  testimony  satisfied  the  jury  that  the  term  ' '  dimension  stone ' ' 
was  not  used  in  its  ordinary  technical  sense,  but  was  intended  to 
embrace  Belgian  blocks,  then  they  could  so  find  and  allow  the 
plaintiff  to  recover  for  the  Belgian  blocks  at  the  rate  fixed  by 
the  contract  for  dimension  stone. 

The  jury  having  found  a  verdict  in  favor  of  the  plaintiffs 
for  the  whole  amount  claimed — four  hundred  and  fifty  dollars — 
defendants  appeal  upon  the  following  grounds:  "1st.  For  that 
his  honor  erred  in  charging  the  jury  that  if  the  75,000  Belgian 
blocks  were  quarried,  then  whatever  was  quarried  and  ready  for 
shipment  may  be  considered  in  this  contract  as  articles  shipped, 
and  that  the  plaintiffs  could  recover  therefor  against  the  de- 
fendants. 2nd.  In  that  his  honor  erred  in  this:  that  having 
charged  the  jury  that*  the  parties  being  quarrymen,  there  was  a 
presumption  that  they  contracted  with  reference  to  the  technical 
meaning  of  'dimension  stone,'  and  having  charged  further  that 
Belgian  blocks  were  not  dimension  stone  in  its  technical  sense, 
it  was  error  to  submit  to  the  jury  the  question  whether  the 
plaintiff  had  rebutted  this  presumption,  when  he  had  offered  no 
testimony  whatever  to  rebut  the  same. ' ' 

The  action  being  based  upon  a  written  contract,  it  is  quite 
clear  that  the  rights  and  liabilities  of  the  parties  must  be  deter- 
mined by  the  terms  of  such  contract,  and  it  seems  to  us  equally 
clear  that,  under  the  provisions  of  this  contract,  the  plaintiffs 
had  no  right  to  demand,  and  the  defendants  were  under  no  obliga- 
tion to  pay  for  any  stone  until  it  was  shipped  or  sent  to  market, 
for  such  is  the  express  provision  of  the  contract.     It  does  not 


Sec.  7.]  Crawford  v.  oman  &  stewart.  451 

provide  that  defendants  shall  pay  for  the  stone  when  it  is  quar- 
ried, or  even  when  it  is  prepared  for  market,  but  only  when  it  is 
shipped.  Such  being  the  contract  of  the  parties,  expressed  in  no 
equivocal  terms,  we  do  not  see  by  what  authority  a  court  can 
undertake  to  change  those  terms.     *     *     * 

It  seems  to  us  also  that  the  second  exception  is  well  founded. 
Inasmuch  as  the  contract  prescribed  one  price  for  "dimension 
stone,"  and  another  and  much  lower  price  for  all  other  stone, 
it  was,  of  course,  very  material  to  determine  what  was  meant 
by  the  term  "dimension  stone,"  and  especially  whether  Belgian 
blocks  were  embraced  in  that  term.  Now,  as  the  term  ' '  dimension 
stone"  was  a  term  of  art,  it  was  competent,  under  the  well  settled 
rule,  to  receive  evidence  of  experts  as  to  the  technical  meaning 
of  that  term.  1  Greenl.  Evid.  §  280 ;  3  Am.  &  Eng.  Encycl.  L. 
867-8,  and  notes.  Accordingly  such  evidence  was  received  in  this 
case,  and,  as  it  was  conflicting,  a  question  of  fact  was  presented 
as  to  the  meaning  of  the  term  ' '  dimension  stone, ' '  and  especially 
whether  it  included  Belgian  blocks,  Avhich  it  was  the  province 
of  the  .jury  to  determine,  and  it  was  for  the  court  to  instruct 
them  as  to  the  proper  construction  of  the  contract,  accordingly 
as  they  found  one  or  the  other  meaning  of  the  term  to  be 
correct. 

It  seems  to  us  that  the  true  rule  upon  this  subject  is  well 
stated  by  Parke,  B.,  in  Neilson  v.  Harford,  8  Mees.  &  AV.  806,  in 
the  follov.'ing  language,  taken  from  one  of  the  notes  to  the  pas- 
sage in  the  Encyclopedia  above  cited:  "The  construction  of 
all  written  instruments  belongs  to  the  court  alone,  whose  duty 
it  is  to  construe  all  such  instruments  as  soon  as  the  true  meaning 
of  the  words  in  which  they  are  couched,  and  the  surrounding 
circumstances,  if  any,  have  been  ascertained  as  facts  by  the 
jury ;  and  it  is  the  duty  of  the  jury  to  take  the  construction  from 
the  court  either  absolutely,  if  there  be  no  words  to  be  construed 
[or  pehaps  it  would  be  better  to  say  interpreted]  as  words  of 
art  or  phrases  used  in  commerce,  and  no  surrounding  circum- 
stances to  be  ascertained ;  or  conditionally  when  those  words  or 
circumstances  are  necessarily  referred  to  them." 

This  rule  was  illustrated  in  the  case  of  Hutcheson  v.  Bowker, 
5  Mees.  &  W.  535,  where  an  offer  had  been  made  by  letter  to  sell 
a  certain  quantity  of  "good  barley,"  and  the  letter  in  reply, 
after  stating  the  offer,  contained  the  following:  "Of  which 
offer  we  accept,  expecting  you  to  give  us  fine  barley  and  good 


452 


CONDUCT   OF   THE   TRIAL. 


[Chap.  IV. 


weight;"  and  it  was  held  that  although  the  jury  might  find  the 
mercantile  meaning  of  "good"  and  "fine"  as  applied  to  barley, 
yet  they  could  not  go  further  and  find  that  the  parties  did  not 
understand  each  other.  The  question  whether  there  was  a  suf- 
ficient acceptance  was  a  question  to  be  determined  by  the  court 
upon  a  proper  construction  of  the  letters,  Parke,  B.,  saying: 
"The  law  I  take  to  be  this — that  it  is  the  duty  of  the  court  to 
construe  all  written  instruments.  If  there  are  peculiar  expres- 
sions used  in  them,  which  have  in  particular  places  or  trades  a 
known  meaning  attached  them,  it  is  for  the  jury  to  say  what 
is  the  meaning  of  such  expressions,  but  for  the  court  to  decide 
what  is  the  meaning  of  the  contract."^  So,  as  was  said  by 
Shaw,  C.  J.,  in  Eaton  v.  Smith,  20  Pick.  150  (quoting  again  from 
the  Encyclopedia)  :  "AVhen  a  new  and  unusual  word  is  used 
in  a  contract,  or  when  a  word  is  used  in  a  technical  or  peculiar 
sense,  as  applicable  to  any  trade  or  branch  of  business,  or  to  any 
particular  class  of  people,  it  is  proper  to  receive  evidence  of 
usage  to  explain  and  illustrate  it,  and  that  evidence  is  to  be 
considered  by  the  jury ;  and  the  province  of  the  court  will  then 
be  to  instruct  the  jury  what  will  be  the  legal  effect  of  the  con- 
tract or  instrument  as  they  shall  find  the  meaning  of  the  word 
modified  and  explained  by  the  usage." 

It  seems  to  us,  therefore,  that  the  circuit  judge  erred  when  he 
instructed  the  jury  that  while  a  Belgian  block  was  not  a  dimen- 
sion stone,  if  that  word  is  to  be  interpreted  in  its  technical  sense, 
yet  the  question  for  the  jury  to  determine  in  this  case  was 
whether  the  term  "dimension  stone"  was  used  in  this  contract 
in  its  ordinary  technical  sense,  or  in  some  other  sense.  The  writ- 
ten contract  showed  what  terms  had  been  used  by  the  parties, 
and  in  view  of  the  fact  that  one  of  those  terms — "dimension 
stone" — was  a  term  of  art,  the  only  question  for  the  jury  was, 
what  was  the  meaning  of  that  term  in  the  art  to  which  it  is 
applied,  and  not  whether  the  parties  used  that  term  in  a  sense 
different  from  that  which  it  ordinarily  bore.  This  would  be 
allowing  a  party  by  parol  evidence  to  prove  that  the  understand- 


1  In  Neilson  v.  Harford,  8  M.  & 
W.  806,  Baron  Parke  gave  the  fol- 
lowing reason :  "  Unless  this  were 
so,  there  would  be  no  certainty  in 
the  law;  for  a  misconstruction  by  a 
court     is     the    proper     subject,    by 


means  of  a  bUl  of  exceptions,  of 
redress  in  a  Court  of  Error;  but  a 
misconstruction  by  a  jury  can  not 
he  set  right  at  all  effectually. ' '  See 
also  Chambers  v.  Eiggstaff,  69  Ala. 
140;  Curtis  v.  Martz,  14  Mich.  506. 


Sec.  7.]  mckenzie  v.  sykes.  453 

ing  between  the  parties  was  different  from  that  which  the  terms 
they  have  used  ordinarily  and  properly  import,  which  is  not 
permissible,  as  it  would  be  in  effect  varying  the  terms  of  a 
written  contract  by  parol.  See  DeCamps  v.  Carpin,  19  S.  C.  121. 
We  must  look  alone  to  the  written  contract  for  the  words  used 
by  the  parties,  and  where  some  of  the  words  are  terms  of  art, 
it  is  for  the  jury  to  say,  from  the  testimony  adduced,  what  is  the 
proper  and  technical  signification  of  such  terms,  and  there  the 
province  of  the  jury  terminates,  and  it  is  for  the  court  to  deter- 
mine the  true  construction  of  the  contract,  reading  the  terms  of 
art  used  therein  in  the  sense  as  thus  ascertained  by  the  jury. 
But  the  jury  are  not  at  liberty  to  say  that  though  the  words 
used  by  the  parties  properly  mean  one  thing,  yet  the  evidence 
shows  that  the  parties  intended  them  to  mean  something  else; 
for  that  would  permit  the  jury  to  substitute  for  the  words  actu- 
ally used  by  the  parties  other  words  which  they  have  not  used. 
In  this  case  both  of  the  parties  who  were  active  in  making  this 
contract  were  quarrymen,  with  considerable  experience  in  the 
business,  and  when  they  used  a  term  of  art,  it  must  be  presumed 
that  they  used  it  in  its  technical  sense,  and  as  it  would  ordinarily 
be  understood  by  quarrymen,  and  in  the  absence  of  anything  in 
the  contract  itself  indicating  that  they  intended  to  use  that  term 
in  any  other  or  broader  sense,  this  presumption  is  conclusive. 

The  judgment  of  this  court  is,  that  the  judgment  of  the 
Circuit  Court  be  reversed,  and  the  case  be  remanded  to  that 
court  for  a  new  trial. 


McKENZIE  V.  SYKES. 

47  Michigan,  294.     [1882.] 

CooLEY,  J.  This  is  an  action  of  replevin  for  a  quantity  of 
wheat  which  was  raised  by  Sykes  on  the  land  of  McKenzie,  who 
is  his  father-in-law,  while  the  parties  were  living  together  upon 
it.  The  chief  controversy  concerns  the  bargain  under  which 
the  wheat  was  raised. 

Both  of  the  parties,  and  also  their  wives,  were  sworn  and 
examined  as  witnesses.  The  testimony  of  Sykes  tended  to  show 
that  after  his  marriage  with  McKenzie 's  daughter  in  September, 


454  CONDUCT   OF   THE   TRIAL.  [ChAP,    IV. 

1878,  it  was  talked  over  between  himself  and  ]\IcKenzie  that  he 
should  live  in  t.lie  house  with  ]\IcKenzie,  work  the  farm  and  raise 
would  he  could  off  it,  let  McKenzie  have  his  living  and  his  stock 
kept,  and  Sykes  have  the  remainder ;  that  under  this  arrangement 
he  went  on  and  sowed  winter  wheat,  raised  and  harvested  701 
bushels,  drew  off  a  part  of  it,  when  he  was  forbidden  by  Mc- 
Kenzie to  take  the  remainder  and  therefore  replevied  it.  He 
admitted  that  McKenzie  assisted  him  somewhat  in  the  work. 
Mrs.  Syke's  testimony  supported  to  some  extent  that  of  her 
husband.  On  the  other  hand  McKenzie  testified  that  he  told 
Sykes  he  might  go  on  and  work  the  farm  and  should  have  what 
was  right,  and  when  the  wh.^at  was  harvested  and  threshed,  he 
was  willing  to  let  him  have  one-half.  This  he  seems  to  have 
thought  was  liberal,  as  he  did  a  large  share  of  the  work  and 
bore  a  part  of  the  expense  himself.  Mrs.  McKenzie  seems  to 
have  heard  no  bargain  but  much  vague  talk. 

On  this  evidence  the  question  for  the  jury  was  whether  Sykes 
owned  the  wheat,  or  on  the  other  hand  was  tenant  in  common 
with  McKenzie.  The  circuit  judge  instructed  the  jury  that  if 
Sykes  was  to  cultivate  the  farm  and  have  what  he  raised,  allow- 
ing ^McKenzie  his  living  and  the  keeping  of  his  stock,  then  the 
title  to  the  wheat  was  in  Sykes.  He  also  gave  the  following 
instructions:  "If  the  jury  find  that  McKenzie  said  to  Sykes, 
'You  carry  on  this  farm  and  manage  it,  and  I  will  do  what  is 
right  by  you,'  this  means  that  'upon  settlement  at  the  close  of 
our  arrangement' — or  of  the  year,  perhaps — 'I  will  do  in  the 
matter  of  charges  against  you  what  is  right.'  So  I  say  if  the 
jury  find  the  testimony  upon  that  point  as  I  have  stated,  it 
would  not  make  them  tenants  in  common." 

It  seems,  therefore,  to  have  been  the  opinion  of  the  circuit 
judge  that  whether  the  one  party  was  believed  or  the  other,  the 
title  to  the  wheat  was  in  Sykes.  But  the  difficulty  with  this 
instruction  is  that  he  assumed  to  interpret  for  the  jury  the 
oral  negotiations  of  the  parties,  and  put  a  construction  upon 
certain  oral  terms  provided  the  jury  should  find  they  were  in 
substance  made  use  of.  In  doing  this  he  took  upon  himself  func- 
tions which  belong  to  the  jury  exclusively.  It  is  for  the  court 
to  interpret  the  written  contracts  of  parties,  for  when  they  have 
assented  to  definite  terms  and  stipulations  and  incorporated  them 
in  formal  documents,  the  meaning  of  these,  it  is  supposed,  can 
always  be  discovered  on  inspection;  nothing  which   is  within 


Sec.  7.]  belt  v,  goode,  455 

the  purview  of  the  contract  is  left  in  doubt  and  there  is,  of  course, 
nothing-  to  submit  to  the  jury.  Thompson  v.  Richards,  14  Mich. 
172.  But  where  the  terms  of  a  negotiation  are  left  to  oral  proofs, 
the  question  what  the  quarties  said  and  did,  and  what  they  in- 
tended should  be  understood  thereby,  is  single  and  cannot  be 
separated  so  as  to  refer  one  part  to  the  jury  and  another  part  to 
the  judge,  but  in  its  entirety  the  question  is  one  of  fact.  Strong 
V.  Saunders,  15  Mich.  339 ;  Maas  v.  White,  37  Mich.  126 ;  Estate 
of  Young,  39  Mich.  429 ;  Engle  v.  Campbell,  42  Mich.  565.  If, 
therefore,  McKenzie  in  substance  told  Sykes  to  go  and  cultivate 
the  farm  and  he  would  do  by  him  what  was  right,  it  is  not  within 
the  province  of  the  judge  to  say  that  by  this  McKenzie  meant 
he  would  do  what  was  right  in  the  matter  of  charges ;  but  it  was 
for  the  jury  to  consider  all  the  conversation  of  the  parties  which 
made  up  the  negotiation  between  them,  and  from  the  whole,  in 
the  light  of  the  surrounding  circumstances,  determine  accord- 
ing to  their  best  judgment  what  was  the  meaning.  In  the  light 
of  all  the  facts  the  jury  might  perhaps  conclude  that  the  bar- 
gain, as  the  parties  understood  it,  was,  that  McKenzie  would 
pay  for  his  son-in-law 's  services  what  was  right,  or  that  he  would 
divide  the  crop  with  him  as  was  right;  but  however  that  may 
be,  it  is  sufficient  for  the  purposes  of  this  case  that  the  result 
of  the  negotiations  must  be  determined  by  the  jury,  not  by 
the  court. 

The  judgment  must  be  reversed  with  costs  and  a  new  trial 
ordered. 


BELT  V.   GOODE. 

31  Missouri,  128.     [I860.] 

Appeal  from  St.  Louis  Circuit  Court. 

It  is  deemed  unnecessary  to  set  forth  the  facts  in  evidence 
more  fully  than  they  appear  in  the  opinion  of  the  court.  The 
court,  of  its  own  motion,  gave  the  following  instruction:  "If 
the  jury  find  that  the  defendant  employed  plaintiffs  in  the 
capacity  of  real  estate  agents  to  sell  land  for  him,  and  that  they 
effected  a  sale  thereof  agreeably  to  such  employment,  and  that 
there  was  no  special  agreement  as  to  the  compensation  they  in 
that  behalf  rendered,  then  the  plaintiffs  are  entitled  to  recover 


456  CONDUCT   OF    THE    TRIAL.  [ChAP.    IV. 

a  reasonable  compensation  for  such  services.  But  if  the  jury 
find  that  there  was  a  special  continuous  contract  made  between 
plaintiffs  and  defendant  concerning  such  sale,  and  that  one  of 
the  conditions  of  such  contract  was  that  plaintiffs  should  sell 
the  land  for  a  sufficient  price  to  reimburse  the  defendant  for  the 
costs  and  expenses  he  had  incurred  concerning  the  land  and  to 
pay  them  for  their  services,  then,  in  order  for  the  plaintiffs  to 
recover  in  this  suit,  the  jury  should  believe  from  the  evidence 
that  the  land  sold  for  a  sufficient  sum  to  reimburse  defendant 
for  his  said  costs  and  expenses  and  to  compensate  plaintiffs ;  and 
if  the  sale  was  made  under  a  contract  with  such  a  condition,  the 
jury  should  find  for  the  defendant,  unless  they  believe  that  the 
laud  sold  for  a  sufficient  sum  to  reimburse  defendants  and  to 
plaintiffs  their  compensation;  and  the  burden  of  proving  that 
plaintiffs  have  performed  the  conditions  of  such  a  special  con- 
tract devolves  upon  the  plaintiffs  to  entitle  them  to  recover. ' ' 
Napton,  Judge,  delivered  the  opinion  of  the  court. 
Judge  Gaston  observed,  in  the  case  of  Young  v.  Jeffries,  4  Dev. 
&  Batt.  220,  that  ' '  where  a  contract  is  by  parol,  the  terms  of  the 
agreement  are  of  course  a  matter  of  fact,  and  if  those  terms  be 
obscure  or  equivocal,  or  are  susceptible  of  explanation  from  ex- 
trinsic evidence,  it  is  for  the  jury  to  find  also  the  meaning  of  the 
terms  employed;  that  the  effect  of  a  parol  agreement,  when  its 
terms  are  given  and  their  meaning  fixed,  is  as  much  a  question 
of  law  as  the  construction  of  a  written  instrument. ' '  ^ 

The  question  in  this  ease  was  purely  one  of  fact.  The  plain- 
tiffs were  employed  by  the  defendant  to  sell  a  lot  of  ground, 
which  he  had  purchased  a  short  time  before,  upon  a  special 
agreement  as  to  their  compensation.  The  lot  had  been  pur- 
chased by  the  plaintiff  for  one  hundred  thousand  dollars,  but 
previously  to  its  purchase  he  had  leased  it  from  the  owner  at  a 
rent  of  six  thousand  dollars  per  annum,  and  his  losses  on  this 
lease,  during  the  three  years  he  held  it,  amounted  to  a  consider- 
able sum,  estimated  by  a  witness  at  thirty  thousand  dollars.  The 
proceeds  of  the  sale  made  by  the  plaintiffs  were  $122,705.  The 
only  question  is  as  to  the  terms  and  meaning  of  the  special 
contract,  whether  the  compensation  of  the  plaintiffs  was  made 
conditional  on  being  reimbursed  by  the  proceeds  for  the  cost 

1  See  also  Brannock  v.  Elmore, 
114  Mo.  55;  Spragins  v,  "White,  108 
N.  C.  449. 


Sec.  7.]      loudon  savings  soc.  v.  hagerstown  b'k.  457 

and  expenses  incurred  both  in  the  purchase  and  in  the  lease,  or 
whether  the  ixidemnity  was  to  extend  only  to  the  cost  and 
expenses  incurred  in  the  purchase.  If  the  former  was  the  under- 
standing of  the  parties,  it  is  clear  that  the  plaintiffs  were  not 
entitled  to  recover;  but  if  the  latter,  they  were.  This  was  a 
question  for  the  jury. 

The  objection  to  the  instruction  given  by  the  court  is,  that  its 
language  is  equivocal.  There  is  an  ambiguity  in  the  terms  of 
the  instruction,  which  speak  of  "the  costs  and  expenses  incurred 
concerning  the  land."  This  may  mean  either  the  cost  and 
expenses  incurred  in  the  purchase  or  in  the  lease,  or  in  both. 
It  is  easy  to  put  the  question  to  the  jury  in  such  a  way  as  to 
leave  no  doubt  as  to  the  subject  for  their  inquiry;  and  as  the 
jury  may  have  been  misled  by  the  instruction  alluded  to,  we 
shall  remand  the  case  for  another  trial. 

Judgment  reversed. 


LOUDON  SAVINGS  SOCIETY  v.  HAGERSTOWN  BANK. 

36  Pennsylvania  St.  498.     [I860.] 

Woodward,  J.  The  Hagerstown  Savings  Bank  brought  this 
action  of  assumpsit  against  William  McGrath  and  his  numerous 
co-defendants,  as  partners  trading  and  doing  business  under  the 
name  and  style  of  the  Loudon  Savings  Fund  Society.  The  first 
count  in  the  plaintiff's  narr.  is  founded  upon  a  "certain  writing 
obligatory,  commonly  called  a  certificate  of  deposit,  for  the  sum 
of  five  thousand  dollars,  signed  by  H.  Easton,  treasurer  of  said 
Loudon  Savings  Fund  Society  (who  had  full  power  conferred 
upon  him  to  do  such  act),  and  then  and  there  delivered  said  cer- 
tificate of  deposit  to  said  plaintiff,  and  thereby  promised  to  pay 
said  plaintiff  said  sum  of  five  thousand  dollars,  six  months  after 
the  date  thereof,  with  interest  at  6  per  cent. ' '  The  second  count 
is  upon  a  certificate  for  a  deposit  of  like  sum,  made  by  H.  Easton, 
and  by  him  endorsed,  but  delivered  by  the  defendants  to  the 
plaintiff.    Then  follow  the  common  money  counts. 

The  copy  of  the  certificate  of  deposit  shows  that  it  was  issued 
on  the  1st  January,  1857,  by  H.  Easton,  treasurer,  to  liimself  for 
five  thousand  dollars,  payable  to  his  order  six  months  after  date, 
with  interest  at  six  per  cent,  and  by  him  endorsed  in  blank. 


458  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

Besides  all  the  general  pleas,  the  defendants  pleaded  specially: 
1st.  That  the  said  writing  obligatory  was  not  their  act  or  deed. 
2d.  That  Hezekiah  Easton  had  no  power  or  authority,  as  treas- 
urer of  the  Loudon  Association  or  otherwise,  to  sign  or  endorse 
the  certificate,  and  that  he  issued  it  fraudulently  and  corruptly, 
without  the  knowledge  or  authority  of  the  defendants,  of  all 
which  the  plaintiff  had  knowledge  when  the  certificate  came  into 
their  possession.     *     *     * 

On  the  trial  of  the  cause  the  learned  judge  directed  the  jury 
to  return  a  verdict  for  the  amount  of  the  plaintiffs'  claim,  and 
declined  to  submit  any  question  of  fact  for  their  decision.  To 
the  admission  of  evidence,  and  the  refusal  of  the  court  to  give 
instructions  prayed  for,  sixteen  errors  are  assigned,  which  I  do 
not  propose  to  consider  in  consecutive  order,  though  all  that  is 
material  in  them  shall  be  noticed. 

It  is  apparent,  that  the  great  question  raised  upon  the  record 
had  reference  to  the  character  and  extent  of  Easton 's  authority, 
as  the  agent  of  the  defendants.  The  party  who  avails  himself 
of  the  act  of  an  agent  must,  in  order  to  charge  the  principal, 
prove  the  authority  under  which  the  act  is  done.  If  the  authority 
be  created  by  power  of  attorney,  or  other  writing,  the  instru- 
ment itself  must  in  general  be  produced ;  and  since  the  construc- 
tion of  writings  belongs  to  the  court,  and  not  to  the  jury,  the 
fact  and  scope  of  the  agency  are,  in  such  cases,  questions  of  law, 
and  are  properly  decided  by  the  judge.  But  the  authority  may 
be  by  parol,  or  it  may  be  implied  from  the  conduct  of  the  em- 
ployer in  sanctioning  the  credit  given  to  a  person  acting  in  his 
name.  And  in  many  cases,  the  acts  of  an  agent,  though  not  in 
conformity  to  his  authority,  may  yet  be  binding  upon  his 
employer,  who  is  left,  in  such  cases,  to  seek  his  remedy 
against  his  agent.  Whether  an  employer  be  or  be  not  bound  by 
such  acts  as  are  not  conformable  to  the  commission  given  by  him, 
depends  principally  upon  the  authority  being  general  or  special. 
By  a  general  agent,  is  understood  not  merely  a  person  substituted 
in  the  place  of  another,  for  transacting  all  manner  of  business, 
but  a  person  whom  a  man  puts  in  his  place  to  transact  all  his 
business  of  a  particular  kind,  as  to  buy  and  sell  certain  kinds  of 
wares,  to  negotiate  certain  contracts,  and  the  like.  An  authority 
of  this  kind  empowers  the  agent  to  bind  his  employer  by  all 
acts  within  the  scope  of  his  employment,  and  that  power  cannot 
be  limited  by  any  private  order  or  restriction,  not  known  to 


Sec.  7.]  elliott  v.  south  devon  ry.  co.  459 

the  party  dealing  with  the  agent.  A  special  agent  is  one  who 
is  employed  about  one  specific  act,  or  certain  specific  acts  only, 
and  he  does  not  bind  his  employer  unless  his  authority  be  strictly 
pursued:  Paley  on  Agency,  199,  et  seq.  "A  general  authority," 
said  Lord  Ellenborough,  in  Whitehead  v.  Tuckett,  15  East,  408, 
"does  not  import  an  unqualified  one,  but  that  which  is  derived 
from  a  multitude  of  instances ;  whereas  a  particular  authority  is 
confined  to  an  individual  instance."  And  in  all  instances  where 
the  authority,  whether  general  or  special,  is  to  be  implied  from 
the  conduct  of  the  principal,  or  where  the  medium  of  proof  of 
agency  is  per  testes,  the  jury  are  to  judge  of  the  credibility  of 
witnesses,  and  of  the  implication  to  be  made  from  their  testi- 
mony. 

As  the  plaintiff  here  did  not  produce  any  written  evidence  of 
Easton's  agency,  it  was  the  duty  of  the  court  to  inform  the  jury, 
what  constitutes  agency,  express  or  implied,  special  or  general, 
and  to  refer  to  them  the  question,  1st  whether  the  evidence  satis- 
fied them  that  Easton  was  either  the  general  or  special  agent  of 
the  defendants?  and  2d  whether  the  issuing  of  the  certificate  in 
suit  was  within  the  scope  of  his  authority  ?i  3  W.  &  S.  79  ;  11  Har- 
ris, 247 ;  6  Casey,  513 ;  7  Id.  461. 

Or  if  It  was  not  a  case  of  strict  agency,  if  Easton  acted  with- 
out any  authority  in  issuing  the  certificate,  or  transcended  such 
as  had  been  delegated  to  him,  the  question  of  ratification  by 
the  defendants  was  also  a  mixed  question  of  law  and  fact.  What 
would  in  law  amount  to  ratification,  was  for  the  court;  whether 
such  proofs  were  found  in  the  case,  was  for  the  jury.  Such 
adoptive  authority  relates  back  to  the  time  of  the  original  trans- 
action, and  is  deemed,  in  law,  the  same  to  all  purposes,  as  if  it 
had  been  given  before :  Lawrence  v.  Taylor,  5  Hill,  107-113 ; 
and  see  Livermore  on  Pr.  and  Agent,  Vol.  I,  pp.  44-50 ;  Railroad 
V.  Cowell,  4  Casey,  337.     *     *     * 


ELLIOTT  V.  SOUTH  DEVON  RAILWAY  CO. 

2  Exchequer,  725.     [1848.] 

This  was  an  issue  directed  by  the  Vice-Chancellor  of  England 
to  try  whether  the  South-  Devon  Railway,  in  deviating  from  the 

1  See    also    Knight    v.    Luce,    116 
Mass.  586. 


460  CONDUCT   OP   THE   TRIAL.  [ChAP.    IV. 

level  in  passing  over  land  of  which  the  plaintiff  was  the  owner 
and  occupier,  was  passing  through  a  "town,"  within  the  meaning 
of  the  11th  section  of  the  Railway  Clauses  Consolidation  Act, 
8  and  9  Vict.  Chap.  20,  which  enacts,  that ' '  in  making  the  railway 
it  shall  not  be  lawful  for  the  company  to  deviate  from  the  levels 
of  the  railway,  as  referred  to  the  common  datum  line  described  in 
the  section  approved  of  by  Parliament,  and  as  marked  on  the  same, 
to  any  extent  exceeding  in  any  place  five  feet,  or  in  passing 
through  a  town,  village,  street,  or  land,  continuously  built  upon, 
two  feet,  without  the  previous  consent,  in  writing,  of  the  owners 
and  occupiers  of  the  land  in  which  such  deviation  is  intended  to 
be  made." 

At  the  trial,  before  Wightman,  J.,  at  the  Exeter  Spring 
Assizes,  1848,  it  appeared  that  the  plaintiff  was  the  owner  and 
occupier  of  certain  fields,  which,  a  few  years  ago,  were  unques- 
tionably in  the  country.  The  town  of  Plymouth  had,  however, 
considerably  increased,  and  the  land  adjoining  the  plaintiff's  was 
now  built  upon,  so  that  his  land  was  on  three  sides  bounded  by 
houses  and  streets.  On  the  fourth  side  it  was  bounded  by  build- 
ing land,  not  yet  built  upon.  The  roads,  for  some  distance  beyond 
the  plaintiff's  land  were  lighted,  paved,  and  watched  by  the 
commissioners  acting  in  execution  of  the  local  act,  5  Geo.  4,  Chap. 
22.  Although  the  plaintiff's  land  was,  from  its  situation,  very 
likely  to  be  soon  built  upon,  and  was  of  great  value  as  build- 
ing land,  it  was  as  yet  used  as  pasture  land.  By  the  Vice-Chan- 
cellor's order  it  was  admitted  that  the  railway,  in  passing  over 
the  plaintiff's  land,  had  deviated  from  the  level,  as  referred  to 
the  datum  line,  more  than  two  and  less  than  five  feet,  without 
the  plaintiff's  consent.  The  learned  judge  told  the  jury  that  the 
word  "town,"  as  used  in  the  act,  was  to  be  understood  in  its  ordi- 
nary and  popular  sense ;  and  that  it  was  for  them  to  decide 
whether  the  plaintiff's  land  was  in  a  "town,"  within  the  mean- 
ing of  the  act  of  Parliament;  that  the  assessment  and  payment 
of  rates  under  the  local  act  was  not  a  test.  The  jury  found  that 
the  railway  on  the  plaintiff's  land  was  passing  through  a  town, 
within  the  meaning  of  the  act. 

A  rule  having  been  obtained,  calling  on  the  plaintiff  to  show 
cause  why  there  should  not  be  a  new  trial,  on  the  ground  of 
misdirection  on  the  part  of  the  learned  judge  in  not  properly 
explaining  to  the  jury  the  meaning  of  the  word  "town."    *    *    * 

Parke,  B. — There  must  be  a  new  trial.    The  learned  judge  was 


i 


Sec.  7.]  finney  v.  guy.  461 

certainly  not  bound  to  define  the  meaning  of  the  word  "town," 
so  as  to  embrace  every  possible  case,  yet  he  ought  to  have  given 
a  definition  sufficient  to  enable  the  jury  to  decide  the  present 
question,  which  is,  whether  the  railway  can  be  considered  as 
passing  through  a  "town,"  within  the  meaning  of  the  act  of 
Parliament.  It  would  appear  that  the  word  ' '  town ' '  is  not  to  be 
understood  in  its  strict  legal  interpretation,  as  a  township  hav- 
ing a  church  or  a  constable,  but  a  place  containing  a  number  of 
houses  congregated  together — an  inhabitated  spot  where  the 
occupation  is  continuous.  No  railway  entering  the  boundary  of 
that  town  can  be  raised  two  feet  without  the  consent  of  the 
persons  through  whose  land  it  passes.  Does,  then,  this  railway 
enter  the  boundary  of  collected  masses  of  houses?  I  think  not. 
But  it  is  a  question  for  the  jury  whether  this  open  space  is  con- 
tinuously surrounded  with  houses.  Such  a  space  may  be  part  of 
a  town,  although  not  built  upon,  if  there  are  masses  of  houses 
around  it ;  as,  for  instance,  the  green  of  Grosvenor  square.  Un- 
less, therefore,  this  piece  of  land  is  surrounded  with  houses,  so 
that  the  railway,  in  passing  the  boundary  of  it,  enters  masses  of 
inhabited  houses,  the  case  is  not  within  the  act.  I  do  not  mean 
to  say  that  the  open  space  must  be  surrounded  with  houses  touch- 
ing each  other,  but  only  continuously  surrounded  with  houses 
in  the  popular  sense  of  the  word  ' '  continuous. ' '  There  ought  to 
be  a  new  trial,  in  order  that  the  judge  may  define  the  meaning 
of  the  term  "town"  in  this  act  of  Parliament.     *     *     * 

Rule  absolute. 


FINNEY  V.  GUY. 

189  U.  S.  335.      \1903.] 

This  action  was  commenced  in  a  proper  court  of  the  State  of 
Wisconsin  to  enforce  the  shareholders'  liability  under  a  Minne- 
sota statute,  in  a  corporation  of  Minnesota  and  doing  business  in 
that  state.  The  defendant  demurred  to  the  complaint  on  the 
ground,  among  others,  that  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  The  demurrer  Avas  overruled  by  the 
trial  court  and  judgment  given  for  the  plaintiff,  which  was  re- 
versed by  the  Supreme  Court  of  the  state,  106  Wisconsin,  256, 
and  the  case  has  been  brought  here  by  plaintiff  to  review  the 
judgment  of  reversal. 


462  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

The  facts  alleged  in  the  complaint  are  in  substance  these: 

#     #     # 

The  complaint  then  set  forth  several  sections  of  the  General 
Statutes  of  the  State  of  Minnesota  of  1878,  among  them  being 
sections  5905,  5906,  5907  and  5911,  and  it  was  averred  that  this 
action  could  be  maintained  by  reason  of  such  sections.  They 
are  the  same  as  are  set  forth  in  Hale  v.  Allinson,  188  U.  S.  56. 
It  was  then  averred  that  decisions  in  the  courts  of  the  State  of 
Minnesota  had  been  rendered  relating  to  the  liability  of  stock- 
holders under  those  statutes,  in  corporations  organized  under  the 
laws  of  that  state,  as  to  the  proper  method  of  enforcing  such 
liability.  The  complaint  then  referred  to  some  twenty  different 
decisions  in  the  state  courts  of  Minnesota  by  titles  and  gave  a 
reference  to  the  volumes  in  which  they  were  reported,  and  it 
then  stated  what  the  law  of  Minnesota  was  under  those  decisions 
and  statutes,  as  to  the  liability  of  stockholders,  and  the  manner 
in  which  that  liability  could  be  enforced  and  the  effect  of  a 
judgment  recovered  in  a  state  court  by  a  creditor  in  his  own 
behalf  and  in  behalf  of  all  others  similarly  situated,  and  it 
averred  that  a  judgment  such  as  was  obtained  in  the  Minnesota 
suit  was  conclusive  upon  stockholders,  even  though  they  were  not 
parties  thereto,  as  to  all  questions  of  indebtedness  of  the  bank 
and  w^ho  were  its  creditors,  and  that  defendant,  though  not  served 
with  process  in  that  suit,  was  concluded  by  the  judgment  as  to 
her  liability  as  shareholder,  except  as  therein  stated.  It  also 
averred  that  the  Minnesota  decisions  held  that  after  such  a  judg- 
ment had  been  obtained  under  those  statutes  a  suit  could  be 
maintained  in  the  courts  of  another  jurisdiction,  similar  to  the 
one  before  us,  and  the  complaint  ended  with  a  prayer  for  judg- 
ment that  the  defendant  should  pay  the  plaintiff  the  sum  of 
$3800,  with  interest  thereon  since  April  28,  1897,  and  that  A.  C. 
Finney,  one  of  the  plaintiffs,  be  appointed  receiver  herein,  to 
collect  the  amount  and  distribute  the  same  pro  rata  among  the 
other  plaintiffs. 

Mr.  Justice  Peckham,  after  making  the  foregoing  statement 
of  facts,  delivered  the  opinion  of  the  court. 

The  demurrer  raises  the  question  whether  the  complaint  states 
facts  sufficient  to  constitute  a  cause  of  action.  The  plaintiffs  con- 
tend that  their  cause  of  action  is  based  upon  the  decisions  and 
judgments  of  the  courts  of  the  State  of  Minnesota,  and  upon 
the  statutes  of  that  state,  and  that  the  Wisconsin  Supreme  Court 


Sec.  7.]  finney  v.  guy.  463 

in  sustaining  the  demurrer  has  thereby  failed  to  give  that  full 
faith  and  credit  to  the  laws  and  judgments  of  the  State  of  Minne- 
sota and  its  courts  which  they  receive  in  that  state  and  which 
they  are  entitled  to  under  the  Constitution  and  laws  of  the 
United  States,  and  that  by  reason  thereof  a  Federal  right  has 
been  denied  them. 

They  urged  that,  under  the  judgment  of  the  American  Savings 
&  Loan  Association  v.  Farmers'  &  Merchants'  State  Bank,  which 
was  recovered  in  the  ]\Iinnesota  court,  and  is  referred  to  in  the 
foregoing  statement  of  facts,  the  defendant  is  concluded  as  to 
her  defense  to  the  same  extent  she  would  have  been  had  she  ap- 
peared and  contested  her  liability  in  the  Minnesota  courts,  and 
that  as  a  consequence  the  Wisconsin  courts  are  bound  to  give  the 
same  effect  to  that  judgment  in  their  courts  that  it  has  in  the 
courts  of  Minnesota;  that  if  such  effect  had  been  awarded  that 
judgment,  then  this  action  could  have  been  maintained ;  and  the 
Wisconsin  court  in  sustaining  the  demurrer  denied  such  effect 
to  the  judgment,  which  was  a  violation  of  a  right  founded  upon 
the  Federal  Constitution.     *     *     * 

After  quite  a  full  examination  of  the  Minnesota  decisions  on 
the  question,  we  have  just  decided  in  Hale  v.  Allinson,  188  U.  S. 
56,  that  a  receiver  appointed  in  Minnesota,  under  these  same 
statutes,  could  not  maintain  an  action  outside  of  that  state  to 
enforce  the  liability  of  a  stockholder,  and  it  was  said  that  the 
courts  of  Minnesota  had  held  the  same  thing  for  many  years. 
An  examination  of  the  decisions  of  the  Minnesota  courts  shows 
that  they  had  held  that  the  remedy  provided  by  the  statutes 
of  the  state  for  the  enforcement  of  stockholders'  liability  was  a 
suit  in  equity  in  that  state  by  a  creditor  in  his  own  behalf  and 
that  of  all  other  creditors,  against  all  the  stockholders  of  the 
corporation,  or  so  many  of  them  as  could  be  served  with  process, 
and  that  it  was  exclusive,  and  no  other  remedy  could  be  availed 
of  even  within  the  jurisdiction  of  the  courts  of  Minnesota.  That 
being  the  law  of  Minnesota,  it  would,  of  course,  prevent  an  action 
outside  the  state,  by  a  receiver  as  well  as  by  any  other  plaintiff, 
to  enforce  the  stockholders'  liability.  Hence,  in  the  Hale- Allinson 
case,  we  held  the  receiver  could  not  maintain  such  an  action  in  a 
foreign  jurisdiction  and  in  a  Federal  court.     *     *     * 

The  remedy  being  exclusive,  the  statute  must  be  followed,  and 
the  result  is  that  no  other  action  to  enforce  the  liability  can  be 
availed  of  in  another  state.     This  would  call  for  an  affirmance 


464  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

of  the  judgment  but  for  the  claim  now  urged  by  counsel  for 
plaintiffs,  that  the  ease  of  Allen  v.  Walsh  has  been  overruled  by 
subsequent  cases  in  Minnesota,  and  that  the  law  is  correctly  set 
forth  in  the  complaint.  He  calls  attention  to  the  fact  that  this 
case  has  not  gone  to  trial  upon  an  issue  of  any  question  of  fact, 
but  the  questions  to  be  determined  have  arisen  on  demurrer  to 
the  complaint ;  that  the  complaint  avers  as  a  fact  that  by  the  law 
of  Minnesota  such  an  action  as  this  can  be  maintained  in  the 
courts  of  a  foreign  jurisdiction  after  a  judgment  has  been  re- 
covered in  an  action  in  the  state  court,  such  as  is  referred  to  in 
the  complaint,  and  that  the  defendant  by  demurring  admits  that 
the  law  is  as  stated  in  the  complaint,  and  therefore  the  court  is 
bound  to  give  effect  to  the  law  of  Minnesota  such  as  is  set  forth 
in  that  pleading.     This  is  too  broad  a  claim  to  be  maintained. 

If  the  case  had  been  on  trial  upon  issues  of  fact,  among  them 
being  one  as  to  what  the  law  of  Minnesota  was,  and  the  statutes 
as  well  as  the  decisions  above  mentioned  had  been  proved  and  a 
witness  learned  in  the  law  of  Minnesota  had  testified  what  such 
law  was,  as  deduced  by  him  from  those  statutes  and  decisions, 
his  testimony  would  not,  even  though  uncontradicted,  conclude 
the  court  upon  that  issue.  Although  the  law  of  a  foreign  juris- 
diction may  be  proved  as  a  fact,  yet  the  evidence  of  a  witness 
stating  what  the  law  of  the  foreign  jurisdiction  is,  founded  upon 
the  terms  of  a  statute,  and  the  decisions  of  the  courts  thereon  as 
to  its  meaning  and  effect,  is  reallj^  a  matter  of  opinion,  although 
proved  as  a  fact,  and  courts  are  not  concluded  thereby  from 
themselves  consulting  and  construing  the  statutes  and  decisions 
which  have  been  themselves  proved,  or  from  deducing  a  result 
from  their  own  examination  of  them  that  may  differ  from  that  of 
a  witness  upon  the  same  matter.  In  other  words,  statutes  and  de- 
cisions having  been  proved  or  otherwise  properly  brought  to  the 
attention  of  the  court,  it  may  itself  deduce  from  them  an  opinion 
as  to  what  the  law  of  the  foreign  jurisdiction  is,  without  being 
conclusively  bound  by  the  testimony  of  a  witness  who  gives  his 
opinion  as  to  the  law,  which  he  deduces  from  those  very  statutes 
and  decisions. 

It  was  stated  by  Mr.  Justice  Brewer,  speaking  for  the  court 
in  Eastern  Building  &  Loan  Association  v.  Williamson,  189  U.  S. 
122,  a  case  just  decided  and  where  the  same  question  in  substance 
was  before  us,  as  follows :     *     *     * 

"No  witness  can  conclude  a  court  by  his  opinion  of  the  con- 


I 


Sec.  7.]  pinney  v.  gut.  465 

struction  and  meaning  of  statutes  and  decisions  already  in  evi- 
dence. Laing  v.  Rigney,  160  U.  S.  531.  The  duty  of  the  court 
to  construe  and  decide  remains  the  same.  "^ 

This  right  and  duty  of  the  courts  to  themselves  construe  the 
statutes  and  decisions  are  not  altered  because  the  law  of  the  for- 
eign state  and  the  various  decisions  of  its  courts  are  alleged  to  be 
as  set  forth  in  a  pleading  which  is  demurred  to  instead  of  being 
proved  on  a  trial. 

In  this  case  the  statutes  together  with  references  to  the  de- 
cisions of  the  state  courts  are  given  in  the  complaint,  and  the 
pleader,  by  making  an  averment  in  the  form  of  a  fact,  assumes 
to  give  a  meaning  to  them  such  as  he  thinks  to  be  correct,  but 
the  duty  still  remains  with  the  courts  to  themselves  determine 
from  those  statutes  and  decisions  what  is  in  truth  the  law  of 
the  foreign  jurisdiction.  The  courts  are  not  concluded  by  an 
averment  of  what  is  the  law  in  a  foreign  jurisdiction,  contained 
in  a  pleading  which  is  demurred  to,. any  more  than  they  would 
be  by  the  testimony  of  a  witness  to  the  same  effect  upon  a  trial ; 
certainly  not  when  the  statute  upon  which  the  ease  rests  is  set 
forth  and  the  decisions  under  it  are  also  referred  to  as  evidence 
of  the  law.  The  demurrer  does  not  admit  as  a  fact,  that  the  con- 
struction (in  the  form  of  an  averment  of  fact)  which  the  pleader 
may  choose  to  put  upon  those  statutes  or  decisions  is  the  right 
conclusion  to  be  drawn  from  them.  Notwithstanding  the  aver- 
ments in  the  complaint  we  are  brought  to  an  examination  of  the 

1  Field,    C.    J.,    in    Hancock    Na-  is   becomes   one   of  fact.     Wylie  v. 

tional  Bank  v.  Ellis,  172  Mass.  39:  Cotter,   170   Mass.   356."    ,- 
' '  The  law  of  Kansas  was  a  fact  to  Gantt,  P.  J.,  in  Slaughter  v.  Ey., 

be     proved     in     the     present     suit.  116  Mo.  269:  "The  fact  that  it  was 

Where  the  evidence  of  foreign  law  necessary    to    prove    a    foreign    law 

consists   entirely   of   statutes   or   re-  did  not  justify  the  admission  of  all 

ports  of  judicial  decisions,  the  con-  the     laws     of     that     foreign     state, 

structions  and  effects  of  the  statutes  whether  relevant  or  not  to  the  case 

and    decisions    are    usually    for    the  on    trial.      When    foreign    laws    are 

court   alone.      Bride    v.    Clark,    161  in  evidence,  it  is  not  less  the  duty 

Mass.   130;    Beyer  v.   Odd  Fellows'  of  the  court  to  determine  the  law  of 

Fraternal  Accident  Association,  157  the  case  from  them,  than  it  is  its 

Mass.    367;    Gibson   v.    Manufactur-  duty    in    declaring    our    own    laws, 

ers'  Ins.  Co.,  144  Mass.  81.     Where  Cobb   v.   Griffith   &   Adams   Co.,   87 

the     decisions     are     conflicting,     or  Mo.   90;    Charlotte   v.   Chouteau,   33 

where    inferences    of    fact    must    be  Mo.  194." 
drawn,  the  question  of  what  the  law 

H.  T.P.— 30 


466  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

statutes  and  decisions  referred  to,  in  order  to  ourselves  determine 
what  the  law  of  JMinnesota  is.     *     *     * 

AVe  think  the  law  of  Minnesota  still  remains  upon  this  particu- 
lar matter  as  stated  in  the  former  cases,  which  have  not  been  over- 
ruled by  Hanson  v.  Davison.  This,  in  effect,  has  been  held  in 
the  Hale-Allinson  ease,  which  we  have  just  decided.     *     *     * 

Whether,  aside  from  the  Federal  considerations  just  discussed, 
the  Wisconsin  court  should  have  permitted  this  action  to  be  main- 
tained, because  of  the  principle  of  comity  between  the  states,  is 
a  question  exclusively  for  the  courts  of  that  state  to  decide.  The 
right  to  maintain  it  under  the  facts  of  this  case  is  not  founded 
upon  any  provision  of  a  Federal  nature,  and  we  cannot  supervise 
the  action  of  the  AVisconsin  court  in  this  particular. 

Affirmed. 


REX  V.  FRANCKLIN. 

17  EowelVs  State  Trials,  625.     [1731.] 

Lord  Chief  Jiistice  Raymond  (charging  the  jury)  : 
Gentlemen  of  the  jury,  this  is  an  information,  wherein  the 
king  is  plaintiff,  and  ^Ir.  Francklin  defendant,  for  printing  and 
publishing  the  Country  Journal  or  Craftsman,  the  2d  of  Janu- 
ary, 1730,  wherein  is  inserted  an  extract  of  a  private  letter  from 
the  Hague,  reflecting  on  his  majesty  and  his  principal  officers 
and  ministers  of  state.  In  this  information  or  libel,  there  are 
three  things  to  be  considered,  whereof  two  by  you  the  jury,  and 
one  by  the  court.  The  first  thing  under  your  consideration  is, 
w^hether  the  defendant,  Mr.  Francklin,  is  guilty  of  the  publica- 
tion of  this  Craftsman  or  not  ?  The  second  is,  whether  the  ex- 
pressions in  that  letter  refer  to  his  present  majesty  and  his  prin- 
cipal officers  and  ministers  of  state,  and  are  applicable  to  them 
or  not?  This  is  the  chief  thing  in  the  information;  for  if  you 
think  that  these  defamatory  expressions  are  not  applicable  to 
them,  then  the  defendant  is  not  guilty  of  what  is  charged  upon 
him ;  but  if  you  think  that  they  are  applicable  to  them,  then  the 
defendant  is  guilty  thereof :  upon  this  supposition,  that  you  find 
him  to  be  the  publisher  of  that  paper.  These  are  the  two  matters 
of  fact  that  come  under  your  consideration ;  and  of  which  you 
are  proper  judges.     But  then  there  is  a  third  thing,  to  wit, 


Sec.  7,]  rex  v.  francklin,  467 

whether  these  defamatory  expressions  amount  to  a  libel  or  not? 
This  does  not  belong  to  the  office  of  the  jury,  but  to  the  office  of 
the  court;  because  it  is  a  matter  of  law,  and  not  of  fact;  and  of 
which  the  court  are  the  only  proper  judges ;  and  there  is  redress 
to  be  had  at  another  place,  if  either  of  the  parties  are  not  satis- 
fied;  for  we  are  not  to  invade  one  another's  province,  as  is  now 
of  late  a  notion  among  some  people  who  ought  to  know  better; 
for  matters  of  law  and  matters  of  fact  are  never  to  be  confounded. 
As  to  the  first  thing,  whether  the  defendant  is  guilty  of  the  pub- 
lication of  that  Craftsman  which  is  under  your  consideration. 
And  here  in  this  and  the  second  head  I  shall  not  be  long,  because 
things  have  been  so  often  repeated,  and  all  sorts  of  observations 
made  on  both  sides  that  it  is  possible  to  be  made  on  this  occasion ; 
and  my  endeavors  shall  be  to  hinder  you  from  running  away 
with  notions  which  are  not  right.  *  *  *  go^  gentlemen,  you 
are  to  consider  whether  or  not  you  are  satisfied  with  the  evidence 
produced  to  prove  the  defendant  to  be  the  publisher  of  that 
Craftsman  of  the  2d  of  January  last.  The  next  thing  which  you 
are  to  consider  is,  whether  the  expressions  in  that  Hague  letter, 
refer  to  his  present  majesty  and  his  principal  officers  and  minis- 
ters of  state,  and  are  applicable  to  them  as  in  the  information  or 
not;  for  when  people's  names  are  not  set  down  at  length,  but 
pointed  at  by  circumlocution,  or  pieces  of  Avords,  or  by  initial 
letters,  etc.,  the  law  always  allows  innuendos  in  informations, 
which  explain  and  tell  what  the  defendant  meant  by  them;  and 
the  law  likewise  allows  juries  to  give  their  verdict  on  oath, 
whether  they  think  that  these  dark,  defamatory  speeches  have 
the  same  meaning  as  mentioned  in  the  information  or  not.  The 
counsel  for  the  king  have  gone  on  and  explained  and  applied 
these  defamatory  expressions  exactly  as  in  the  information ;  and 
they  have  given  their  arguments  and  reasons  for  so  doing ;  drawn 
from  the  several  parts  of  that  letter,  which  I  shall  not  trouble 
you  with,  because  they  have  been  so  often  repeated  in  your 
hearing;  I  say,  they  have  explained  them  as  mentioned  in  the 
information ;  that  is  to  say,  that  by  these  defamatory  expressions, 
are  meant  his  present  majesty  and  his  principal  officers  and  min- 
isters of  state ;  and  indeed  they  must  be  applicable,  and  refer  to 
them  or  to  somebody  else ;  and  if  they  do  mean  them,  then  I 
must  say  that  they  are  very  scandalous  and  reflecting  expressions; 
because  they  charge  them  with  perfidy  in  breaking  of  treaties, 
ruining  in  a  manner  their  country,  etc.,  as  you  may  see  at  large 


468  CONDUCT   OP   THE   TRIAL.  [ChaP.    IV. 

in  the  letter ;  and  it  is  very  evident  that  these  treaties  could  not 
be  made  without  the  knowledge  and  direction  of  his  majesty. 
The  counsel  for  the  defendant  said,  that  these  scandalous  ex- 
pressions could  not  be  understooc^.  to  refer  to  his  majesty  or  his 
ministers ;  but  they  did  not  tell  to  whom  they  referred ;  I  should 
have  been  glad  to  have  heard  them  do  so;  so  that  you  are  to 
consider  of  whom  these  defamatory  expressions  are  meant,  or 
to  whom  they  are  applicable,  and  as  to  the  rule  and  manner  of 
understanding  them,  you  are  to  do  it,  on  oath,  after  the  same 
manner  and  way  as  you  do  privately  by  yourselves,  taking  all 
the  parts  of  the  letter  together,  I  shall  not  repeat  the  several 
parts  of  it  now  which  the  king's  counsel  did  use,  to  show  that  they 
were  meant  of  his  majesty  and  his  ministers,  because  you  are  to 
have  the  letter  along  with  you ;  for  it  is  plain,  that  the  construc- 
tion of  it  depends  on  the  words  themselves  and  their  connection. 
Gentlemen,  I  have  been  very  short  in  summing  up  the  evidence ; 
and  laid  aside  the  points  of  the  law ;  I  mean,  whether  these  de- 
famatory expressions  amount  to  a  libel  or  not ;  because  the  court 
can  only  determine  that ;  and  if  not  satisfactory  to  either  of  the 
parties,  there  is  a  proper  redress  to  be  had  at  another  place,  as 
I  said  before.  There  was  one  thing  more  mentioned  by  the  de- 
fendant 's  counsel,  which  was,  that  there  is  no  room  to  think  that 
letter  libelous;  because  there  could  be  no  malice  supposed  by 
inserting  it  in  the  Craftsman,  being  only  designed  as  a  piece 
of  foreign  news ;  and  that  the  latter  part  of  the  letter  qualifies  it, 
by  saying  that  the  letter-writer  does  not  take  upon  him  to  justify 
the  truth  of  that  report;  but  that  will  not  do,  for  the  injury 
is  the  same  to  the  persons  scandalized,  whether  the  letter  was  in- 
serted out  of  malice  or  not;  besides,  there  is  no  knowing  or 
proving  particular  malice,  otherwise  than  from  the  act  itself; 
and  therefore  if  the  act  imports  as  much,  it  is  sufficient ;  nor  is 
he  to  take  the  liberty  to  print  what  he  pleases;  for  the  liberty 
of  the  press  is  only  a  legal  liberty,  such  as  the  law  allows;  and 
not  a  licentious  liberty.  Gentlemen,  I  tell  you  again,  that  I  have 
designedly  shortened  things,  because  it  hath  been  so  fully  again 
and  again  laid  before  you.  But  if  there  is  any  thing  afterwards 
that  you  want  to  know,  after  you  have  considered  these  things, 
I  desire  you  would  acquaint  me.  So,  gentlemen,  if  you  are  sen- 
sible, and  convinced  that  the  defendant  published  that  Craftsman 
of  the  2d  of  January  last ;  and  that  the  defamatory  expressions  in 
the  letter  refer  to  the  ministers  of  Great  Britain,  then  you  ought 


Sec.  7.]  state  v,  Patterson.  469 

to  find  the  defendant  guilty;  but  if  you  think  otherwise,  then 
3^ou  ought  not  to  find  him  guilty. 

The  jury  found  the  defendant  guilty  of  publishing  the  said 
libel. 


STATE  V.  PATTERSON. 
68  Maine,  473.     [1878.] 

On  exceptions  from  the  Superior  Court. 

Indictment  under  R.  S.,  Chap.  118,  §  23,  for  maliciously 
threatening  to  accuse  the  complainant,  Oliver  H.  Briggs,  of  some 
offense  with  intent  to  extort  money  from  him,  by  sending  him  a 
written  communication  of  the  following  tenor : 

"Freeport,  Sept.  31 
you  may  if  you  pleas  you  can  enclose  ten  dollers  in  an  letter  and 
cend  it  to  Joseph  Boothby  Yarmouth  me  or  els  you  will  be  en- 
bited  next  tuesday  or  complained  of  me  no  fool 

demacratt  head  quarters." 

The  presiding  judge  stated  to  the  jury  that  the  construction  of 
the  written  communication  was  a  question  of  law  for  the  court, 
and  instructed  them  that,  so  far  as  its  terms  were  concerned,  it 
did  constitute  a  threatening  communication  within  the  meaning 
of  the  statute,  and  that,  if  all  other  facts  necessary  to  establish 
the  guilt  of  the  respondent  were  proved,  a  verdict  of  guilty 
should  be  rendered. 

The  defendant  alleged  exceptions. 

Peters,  J.  The  respondent  was  indicted  for  sending  to  the 
complainant  a  threatening  letter  with  the  intent  to  extort  money. 
The  first  question  that  arose  at  the  trial  was  whether  it  was  the 
province  of  the  court  or  of  the  jury  to  interpret  the  letter. 

As  a  rule,  both  in  civil  and  criminal  cases,  eases  of  libel  to 
some  extent  excepted,  writings  are  to  be  expounded  by  the  court. 
Whenever  a  paper  can  be  understood  from  its  own  words,  its 
interpretation  is  a  question  of  law  for  the  court.  Nichols  v. 
Frothingham,  45  Maine,  220;  Nash  v.  Drisco,  51  Maine,  417; 
Fenderson  v.  Owen,  54  Maine,  372  ;  State  v.  Gould,  62  Maine.  509. 
Wills,  deeds  and  other  contracts  usually  fall  under  this  classifica- 
tion. In  such  cases,  the  meaning  of  the  instrument,  the  promise 
it  makes,  the  duty  or  obligation  it  imposes,  is  a  question  of  law 
for  the  court. 


470  CONDUCT   OF   THE   TRIAL,  [ChaP.    IV. 

There  is,  however,  a  large  class  of  writings  where  the  meaning 
of  particular  words  or  phrases  or  characters  or  abbreviations 
must  be  shown  by  evidence  outside  the  writing,  and  there  may 
be  extrinsic  circumstances  of  one  kind  or  another  affecting  its 
interpretation,  which  may  be  shown  by  oral  testimony.  Here 
the  same  rule  virtually  applies  as  before.  It  is  often  but  inaccu- 
rately said,  in  cases  of  the  kind  named,  that  the  writing  itself  is 
to  be  passed  upon  and  construed  by  the  jury.  Strictly,  that  is  not 
so.  They  find  what  the  oral  testimony  shows,  and  the  court 
declares  what  the  writing  means  in  the  light  of  the  facts  found 
by  the  jury.  The  facts  may  be  found  by  a  special  verdict,  and 
then  the  court  interpret  the  writing  in  view  of  such  finding, 
or  the  case  may  go  to  the  jury  with  hypothetical  instructions 
from  the  court,  or  to  render  a  verdict  one  way  if  certain  facts 
are  found,  and  another  way  if  the  facts  are  found  differently. 
The  court  may  first  inform  the  jury  as  to  the  law,  or  the  jury 
may  first  inform  the  court  as  to  the  facts,  as  may  be  most  prac- 
ticable. Hutchison  v.  Bowker,  5  Mees.  &  W.  535,  540 ;  Smith  v. 
Faulkner,  12  Gray,  251,  255;  Putnam  v.  Bond,  100  Mass.  58; 
Cunningham  v.  Washburn,  119  Mass.  224;  Powers  v.  Gary,  64 
Maine,  9,  21. 

Of  course  there  are  exceptions  to  the  rule.  It  frequently  hap- 
pens that  a  writing  is  introduced  merely  as  a  fact  or  circumstance 
tending  to  prove  some  other  fact.  In  such  case  it  is  generally 
but  a  link  in  a  chain  of  evidence,  the  accompanying  evidence 
being  mostly  or  altogether  oral.  When  that  occurs  the  jury  have 
to  pass  upon  the  whole  transaction,  of  which  the  writing  is  but 
a  part.  The  question  then  is,  not  so  much  what  the  document 
means,  but  what  inference  shall  be  drawn  from  its  meaning, 
and  what  effect  it  shall  have  towards  proving  the  point  at  issue. 
The  writing  and  all  the  concomitant  evidence  go  to  the  jury 
together.  Here  the  duty  of  the  court  is  comparatively  unim- 
portant. It  may  pronounce  what  meaning  the  writing  is  or  is 
not  capable  of,  and  whether  it  is  or  not  relevant  to  the  issue ;  still 
the  value  and  effect  of  such  evidence  is  a  question  of  fact  for 
the  jury.  The  opinion  in  Barreda  v.  Silsbee,  21  How.  146,  147, 
speaks  of  such  a  writing  as  evidence  "collaterally  introduced." 
Other  cases  denominate  it  "indirect  evidence."  The  case  of 
Miller  v.  Fichthorn,  31  Pa.  St.  256,  defines  it  thus:  "A  writing 
as  evidence  of  a  relation  or  right,  must  be  direct  or  indirect 
evidence   of   it.      Statutes,   ordinances,   wills,   conveyances   and 


Sec.  7.]  state  v.  Patterson.  471 

other  contracts  which,  per  se,  declare  the  right  or  relation,  are 
direct  evidence  of  it.  Letters,  contracts  inter  alios,  or  de  aliis 
rehus,  or  any  other  writings  demonstrative  of  facts  relevant  to 
the  matter  in  controversy  and  tending  to  show  its  true  character, 
are  indirect  evidence  of  it.  The  indirect  written  evidence  of  a 
relation  is  usually  accompanied  by  oral  testimony  aiding  or 
rebutting  the  inference  desired  to  be  drawn  from  it,  and  all  such 
usually  go  to  the  jury  together,  as  evidence  on  the  disputed 
question;  and  this  was  the  meaning  of  Chief  Justice  Gibson 
(1  Pa.  St.  E.  386),  when  he  said  that  'an  admixture  of  parol 
with  written  evidence  draws  the  whole  to  the  jury.'  "  The 
following  cases  are  pertinent  hereto:  Primm  v.  Hazen,  27  Mo. 
211 ;  Heft  V.  McGill,  3  Pa.  St.  257 ;  Reynolds  v.  Richards,  14  Pa. 
St.  208 ;  lasigi  v.  Brown,  17  How.  183 ;  Bolckow  v.  Seymour,  17 
C.  B.  (N.  S.),  107. 

The  rule  may  be  subject  to  other  qualification.  It  is  some- 
times difficult  to  determine,  in  the  construction  of  papers,  where 
the  office  of  the  court  ends  and  that  of  the  jury  begins.  But, 
in  view  of  the  rule  or  any  possible  qualification,  we  think  the 
judge  at  nisi  prius  was  right  in  undertaking,  as  matter  of  law, 
to  give  an  interpretation  of  the  letter  relied  on  by  the  govern- 
ment as  being  a  threatening  communication.  His  course  is  sus- 
tained by  direct  authorities.  Regina  v.  Smith,  2  Car.  &  Kir. 
882 ;  Rex  v.  Boucher,  4  Car.  &  P.  562 ;  Rex  v.  Pickford,  Id.  227. 

The  other  question  is  whether  the  judge  interpreted  the  letter 
correctly  or  not.  He  directed  the  jury  to  regard  the  letter  as, 
per  se,  a  threatening  communication.  He  does  not  say  what  the 
crime  or  offense  indicated  in  the  letter  was.  He  merely  in- 
forms the  jury  that  an  accusation  of  some  person  for  some  crime 
or  offense  was  intended.  The  letter,  upon  its  face,  can  bear  no 
other  interpretation.  What  extrinsic  and  independent  facts 
there  were  to  modify  the  prima  facie  character  of  the  communi- 
cation, does  not  appear  in  the  exceptions.  All  opportunities  of 
explanation,  it  is  presumed,  were  allowed  to  the  state  and  also 
to  the  accused.  Parol  evidence  was  admissible  for  the  purpose. 
Arehbald  Crim.  Prac.  and  Plead.  Title:  Threatening  Letters, 
p.  325  ;  Goodrich  v.  Davis,  11  Met.  473  ;  Shattuck  v.  Allen,  4  Gray, 
540,  546;  White  v.  Sayward,  33  Maine,  322.  Threatening  let- 
ters are  likely  to  be  w^ritten  with  as  much  disguise  and  artifice 
as  possible,  and  be  sufficient  to  accomplish  the  purpose  in- 
tended, requiring  evidence  aliunde  to  explain  them. 


472  CONDUCT   OF    THE   TRIAL,  [ChaP.    IV. 

it  was  not  necessary  to  submit  to  the  jury  to  ascertain  what 
the  term  "inbited"  was  intended  for;  it  not  appearing  that  any 
extraneous  facts  were  offered  for  that  purpose.  If  its  intended 
meaning  could  be  best  determined  by  external  facts  and  circum- 
stances, then  the  question  was  one  of  fact  for  the  jury.  If 
ascertainable  from  an  inspection  of  the  whole  paper  itself,  in 
such  ease  it  was  a  question  of  law  for  the  court.  It  is  obvious 
enough  from  the  context  that  an  indictment  was  the  thing  threat- 
ened. The  letter  "d"  in  the  word  was  deficiently  made.  Fen- 
derson  v.  Owen,  supra;  Coolbroth  v.  Purinton,  29  Maine,  469; 
Green  v.  Walker,  37  Maine,  25 ;  Gallagher  v.  Black,  44  Maine,  99. 

Exceptions  overruled. 


PARMITER  V.  COUPLAND. 

6  Mecson-  &  Welshy,  W5.      [1840.] 

This  was  an  action  on  the  case  for  a  series  of  libels  published 
of  the  plaintiff,  the  late  mayor  of  the  borough  of  Winchester, 
in  the  Hampshire  Advertiser  newspaper,  between  the  17th  of 
November,  1838,  and  the  2d  of  March,  1839,  imputing  to  him 
partial  and  corrupt  conduct,  and  ignorance  of  his  duties,  as 
mayor  and  justice  of  the  peace  for  the  borough.  The  defendants 
pleaded  not  guilty.  At  the  trial  before  Coleridge,  J.,  at  the  last 
Winchester  Assizes,  the  learned  judge,  in  the  course  of  his  sum- 
ming up,  stated  to  the  jury  that  there  was  a  difference  with 
regard  to  censures  on  public  and  on  private  persons;  that  the 
character  of  persons  acting  in  a  public  capacity  was  to  a  certain 
extent  public  property,  and  their  conduct  might  be  more  freely 
commented  on  than  that  of  other  persons;  and  having  told  the 
jury  what,  in  point  of  law,  constituted  a  libel,  he  left  it  to  them 
to  say  whether  the  publications  in  question  were  calculated  to 
be  injurious  to  the  character  of  the  plaintiff.  The  jury  having 
found  a  verdict  for  the  defendants. 

Erie,  in  last  Michaelmas  term,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  grounds  (amongst  others),  1st,  that  the  learned 
judge  ought  to  have  directed  the  jury  that,  in  point  of  law, 
the  publications  complained  of  were  libels  on  the  plaintiff;  and, 
2d,  that  it  was  a  misdirection  to  state  to  them  any  distinction 
as  regarded  publications  relating  to  public  and  to  private  in- 
dividuals.    In  this  term, 


i 


Sec.  7.]  parmiter  v.  coupland.  473 

Crowder  appeared  to  show  cause,  but  the  court,  after  the 
report  of  the  learned  judge  had  been  read,  called  upon  Erie 
and  Butt  to  support  the  rule.  The  learned  judge  misdirected 
the  jury,  is  not  stating  to  them,  as  matter  of  law,  that  these 
publications  amounted  to  libels.  "When  words  spoken  are  com- 
plained of  as  defamatory,  the  only  questions  for  the  jury  are, 
(supposing  them  to  be  proved  as  laid),  whether  they  apply  to 
the  plaintiff,  and  whether  the  meaning  ascribed  to  them  in  the 
innuendoes  is  made  out  by  the  evidence :  and  a  different  prin- 
ciple cannot  be  applied  to  oral  and  to  written  slander.  The 
words  here  complained  of  were  clearly  actionable  if  spoken ;  and 
the  judge  would  in  such  case  have  been  bound  to  tell  the  jury, 
that  if  they  were  meant  in  their  ordinary  sense,  the  plaintiff  was 
entitled  to  reeovqr.  It  has  been  often  entertained  as  a  question 
of  law  by  a  Court  of  Error,  whether  a  particular  writing  amounts 
to  a  libel.  In  Wright  v.  Clement,  3  B.  &  Aid.  503,  a  declaration 
stating  that  the  defendant  published  a  libel,  containing  false  and 
scandalous  matters  concerning  the  plaintiff,  in  substance  as  fol- 
lows, was  held  bad  in  arrest  of  judgment,  on  the  ground  that 
the  court  must  judge  whether  the  words  set  out  constituted  a 
ground  of  action  or  not.  (Alderson,  B. — That  is  for  the  benefit 
of  the  defendant ;  the  court  are  to  see  whether,  in  any  reasonable 
sense,  the  words  may  be  innocent.)  If  the  court  are  so  to  judge 
for  the  defendant,  whether  it  be  a  libel  or  not,  so  must  they  also 
for  the  plaintiff.  (Alderson,  B. — That  does  not  follow.)  Hol- 
royd,  J.,  there  says:  "It  is  clear,  that  when  it  can  be  shown 
distinctly  what  the  instrument  is  upon  which  the  whole  charge 
depends,  that  instrument  must  be  shown  to  the  court,  in  order 
that  they  may  form  their  judgment."  (Alderson,  B.,  referred 
to  Chalmers  v.  Payne,  3  T.  R.  428,  n.)  Where  the  libel  is  in  a 
foreign  language,  if  a  translation  of  it  only  be  set  forth,  the 
judgment  will  be  arrested :  Zenobia  v.  Axtel,  6  T.  R.  162.  If 
the  defendant  demurs  to  the  declaration,  then  it  clearly  becomes 
a  question  of  law.  (Alderson,  B. — Then  he  admits  a  malicious 
publication.  Parke,  B. — The  practice  used  to  be  as  you  say 
before  Mr.  Fox's  Act,  32  Geo.  3,  Chap.  60.)  That  act  is  ex- 
pressly confined  to  criminal  cases.  (Parke,  B. — It  is  true;  but 
it  has  been  the  constant  practice,  in  recent  times,  for  the  judge 
to  define  what  is  a  libel,  and  then  to  leave  it  to  the  jury,  first, 
whether  the  writing  complained  of  was  published  by  the  de- 
fendant ;  secondly,  whether  it  fell  within  the  definition  of  the 


474  CONDUCT   OF    THE    TRIAL.  [ChaP.    IV. 

offense.)  Lord  Mansfield  distinctly  laid  it  down,  in  the  case 
of  Rex  V.  Dean  of  St.  Asaph,  2  C.  M.  &  R.  156,  as  a  general 
rule  applicable  to  all  cases  where,  by  the  form  of  the  pleadings, 
the  questions  of  law  and  fact  can  be  severed,  that  the  jury  have 
no  jurisdiction  to  decide  upon  the  law.  Where,  indeed,  the 
words  may  be  controlled  by  the  context,  or  are  capable  of  more 
than  one  meaning,  the  question  must  be  left  to  the  jury;  but 
here  there  is  nothing  whatever  to  throw  any  ambiguity  upon  the 
meaning  of  these  paragraphs.  (Parke,  B. — In  criminal  cases, 
the  judge  is  to  define  the  crime,  and  the  jury  are  to  find  whether 
the  party  has  committed  that  offense.  Mr.  Fox's  Act  made  it 
the  same  in  cases  of  libel,  the  practice  having  been  otherwise 
before.)  In  the  next  place,  it  was  a  misdirection  to  state  to  the 
jury  that  there  was  a  distinction  as  to  libels  on  a  person  in  a 
public  capacity.  No  man  has  a  right  to  impute  to  another, 
whether  filling  a  public  capacity  or  not,  injustice  or  corruption. 

Crowder,  contra,  was  not  called  on  to  argue  the  above  points. 

Parke,  B. — The  verdict  is  unquestionably  wrong,  and  there 
ought  to  be  a  new  trial,  but  on  the  ground  of  its  being  a  wrong 
verdict  only.  I  think  there  was  no  misdirection  on  the  part  of 
the  learned  judge.  One  of  the  grounds  upon  which  this  rule  was 
obtained,  was,  that  the  learned  judge  ought  to  have  told  the  jury 
that  the  terms  of  these  papers  were  libelous,  and  not  to  have  left 
that  as  a  question  of  fact  for  them  to  determine.  But  it  has 
been  the  course  for  a  long  time  for  a  judge,  in  cases  of  libel, 
as  in  other  cases  of  a  criminal  nature,  first  to  give  a  legal  defini- 
tion of  the  offense,  and  then  to  leave  it  to  the  jury  to  say, 
whether  the  facts  necessary  to  constitute  that  offense  are  proved 
to  their  satisfaction ;  and  that,  whether  the  libel  is  the  subject 
of  a  criminal  prosecution,  or  civil  action.  A  publication,  with- 
out justification  or  lawful  excuse,  which  is  calculated  to  injure 
the  reputation  of  another,  by  exposing  him  to  hatred,  •contempt, 
or  ridicule,  is  a  libel.  Whether  the  particular  publication,  the 
subject  of  inquiry,  is  of  that  character,  and  would  be  likely  to 
produce  that  effect,  is  a  question  upon  which  a  jury  is  to  exercise 
their  judgment,  and  pronounce  their  opinion,  as  a  question  of 
fact.  The  judge,  as  a  matter  of  advice  to  them  in  deciding  that 
question,  might  have  given  his  own  opinion  as  to  the  nature  of 
the  publication,  but  was  not  bound  to  do  so  as  a  matter  of  law. 
Mr.  Fox's  Libel  Bill  w^as  a  declaratory  act,  and  put  prosecutions 
for  libel  on  the  same  footing  as  other  criminal  cases. 


Sec.  7.] 


PARMITER    V.    COUPLAND. 


475 


I  also  think  that  there  was  no  misdirection  in  the  other  part  of 
the  learned  judge's  summing  up,  to  which  an  objection  was 
raised.  There  is  a  difference  between  publications  relating  to 
public  and  private  individuals.  Every  subject  has  a  right  to 
comment  on  those  acts  of  public  men  which  concern  him  as  a 
subject  of  the  realm,  if  he  do  not  make  his  commentary  a  cloak 
for  malice  and  slander ;  but  any  imputation  of  wicked  or  corrupt 
motives  is  unquestionably  libelous;  and  such  appears  to  be  the 
nature  of  the  publications  here.  I  do  not  find  that  the  learned 
judge  stated  otherwise :  we  cannot  therefore  grant  a  new  trial, 
as  for  a  misdirection. 

Alderson,  B. — I  entirely  concur.  The  first  question  is,  whether 
the  learned  judge  ought  to  have  laid  it  down  positively,  that  if 
the  publications  were  proved,  and  the  words  were  used  in  their 
ordinary  sense,  the  jury  must  find  that  they  were  libels.  I  think 
it  would  not  be  correct  so  to  do;  but  that  he  ought — having 
defined  what  is  a  libel — to  refer  to  the  jury  the  consideration  of 
the  particular  publication,  whether  falling  within  that  definition 
or  not.  I  think  that  if  he  were  to  take  it  upon  himself  to  say 
that  it  was  a  libel,  he  would  be  wrong  in  doing  so.^ 


1  See  same  practice  in  Broome  v. 
Gasden,  1  C.  B.  728  (1845),  where 
a  verdict  for  defendant  was  ap- 
proved. In  Haire  v.  Wilson,  4  Man. 
&  G.  605  (1829),  the  court  approved 
a  direction  to  find  the  publication  a 
libel.  Compare  Sharp  v.  Larson, 
67  Minn.  428.  In  slander,  see  Sim- 
mons v.  Mitchell,  L.  E.  6  App. 
Cases,  156.  For  reference  to  the 
practice  in  the  State  Trials,  see  4 
Doug.  loe.   101. 

It  is  difficult,  if  not  impossible, 
to  determine  the  precise  way  in 
which  such  questions  were  dealt 
with  under  the  older  practice  be- 
cause the  cases  are  not  fully  re- 
ported. Lord  Mansfield  called  at- 
tention to  this  fact  in  the  Dean 
of  St.  Asaph's  case,  3  Term.  Eep. 
428n.  In  several  of  the  State 
Trials  for  seditious  libels  nothing 
appears  to  have  been  left  to  the 
jury  except  the  fact  of  publication. 
In    some    of    the    civil    cases,    e.  g. 


Levi  V.  Milne,  4  Bingham,  195,  the 
court  held  the  pulilieation  defama- 
tory and  enforced  its  opinion  on  the 
jury.  In  a  number  of  the  older 
cases  the  meaning  charged  in  the 
innuendo  was  submitted  to  the  jury, 
though  in  what  terms  does  not  ap- 
pear. See  R.  V.  Shipley,  4  Douglas, 
73;  Oldham  v.  Peake,  2  Wm.  Black- 
stone,  959;  Eoberts  v.  Camden,  9 
East,  93.  See  Chief  Justice  Shaw's 
explanation  of  the  older  practice  in 
Com.  v.  Anthes,  5  Gray,  185.  In  a 
very  large  number  of  cases,  after 
verdict  for  plaintiff,  the  judgment 
was  arrested  because  the  court  was 
of  the  opinion  that  the  language  did 
not,  or  could  not,  bear  the  meaning 
imputed  by  the  innuendo,  as  in 
Hearne  v.  Stowell,  12  Adol.  &  Ellis, 
719.  As  to  this  last  point,  see  the 
various  opinions  in  Capitol  &  Coun- 
ties Bank  v,  Henty,  L.  R.  7  App. 
Cases,   741. 


476  CONDUCT   OF    THE   TRIAL.  [ChAP,    IV. 

As  to  the  other  point,  there  certainly  is  a  material  distinction 
between  a  publication  relating  to  a  public  and  a  private  person 
whether  they  be  libels.  That  criticism  may  reasonably  be  ap- 
plied to  a  public  man  in  a  public  capacity,  which  might  not  be 
applied  to  a  private  individual.  The  same  thing  might  be  no  libel 
on  me,  which  might  be  a  very  grievous  and  injurious  libel  on 
another.  There  may  be,  and  I  think  in  this  case  there  was,  no 
real  difference  between  the  two  cases,  but  that  this  was  a  libel 
on  the  plaintiff  in  whatever  capacity.  But  I  think  the  learned 
judge  right  in  the  general  observation,  although  I  might  differ 
with  him  in  its  application  to  the  particular  case.  Probably,  in- 
deed, he  applied  it  only  to  the  question  as  to  the  amount  of 
damages.  It  is,  however,  sufficient  to  say,  that  it  does  not  ap- 
pear to  me  to  be  a  misdirection. 

Gurney,  B.,  concurred. 

Rule  absolute,  on  payment  of  costs. 


TWOMBLY  V.  MONROE. 

136  Massachusetts,  464.     [1883.] 

Tort  in  four  counts.  *  *  *  The  fourth  count  alleged  that 
the  defendant  caused  to  be  published  in  a  newspaper  in  Haver- 
hill a  false  and  malicious  libel  concerning  the  plaintiff,  a  copy 
of  which  was  as  follows:  "The  Locust  Street  Brutality  ex- 
plained. The  woman  came  to  my  house,  Sept.  16,  1882,  engaged 
a  suite  of  rooms  for  $1.50  a  week.  She  left  April  11,  1883.  She 
paid  $34.50.  About  three  months  ago  she  decided  not  to  come 
down  stairs  at  all ;  consequently  she  was  a  great  deal  of  trouble. 
I  told  her  six  weeks  ago,  that  if  she  would  leave  the  1st  of  April, 
and  give  me  $6,  I  would  give  her  a  receipt  in  full.  She  wouldn't 
do  it.  She  kept  her  door  locked,  and  would  not  give  any  satis- 
faction. I  sought  advice,  and  did  as  I  was  told.  She  is  not  a 
stranger  here, — she  never  made  friends.  Can  find  out  all  about 
her  by  taking  a  little  trouble.    The  Landlord. ' ' 

Trial  in  the  Superior  Court,  before  Staples,  J.,  who  allowed  a 
bill  of  exceptions,  in  substance  as  follows ;     *     *     * 

The  plaintiff  then  introduced  evidence  tending  to  prove  that 
the  defendant  caused  to  be  published  in  the  Haverhill  Daily 


Sec.  7.]  twombly  v.  monroe.  477 

Bulletin,  a  newspaper  published  in  Haverhill,  the  article  alleged 
to  be  a  libel  in  the  fourth  count ;  and  that  it  was  published  of 
and  concerning  the  plaintiff,  and  referred  to  her.  No  damage 
was  offered  to  be  shown  except  such  as  would  be  implied  from 
the  fact  of  such  a  publication. 

The  judge  ruled,  as  matter  of  law,  that  the  publication  was  not 
in  itself  libelous  or  actionable;  and  directed  the  jury  to  return 
a  verdict  for  the  defendant. 

The  jury  returned  a  verdict  for  the  defendant  on  all  the 
counts ;  and  the  plaintiff  alleged  exceptions. 

Field,  j.  *  *  *  The  fourth  count  is  for  a  libel.  The 
presiding  justice  ruled,  as  matter  of  law,  that  the  publication 
was  not  libelous  or  actionable.  This  count  contains  no  statement 
of  extrinsic  facts,  and  no  colloquium,  except  that  the  publication 
was  concerning  the  plaintiff,  to  show  that  the  words  published 
were  used  or  capable  of  being  understood  in  any  other  than 
their  ordinary  sense ;  and  the  question  is,  whether  the  words  pub- 
lished, in  their  ordinary  import,  have  any  tendency  to  bring  the 
plaintiff  into  pul)lic  hatred,  contempt,  or  ridicule.  Pub.  Sts. 
Chap.  167,  §  94,  Forms  of  Declarations  in  Slander  and  Libel; 
Commonwealth  v.  Child,  13  Pick.  198 ;  Carter  v.  Andrews,  16 
Pick.  1 ;  Chenery  v.  Goodrich,  98  Mass.  224;  York  v.  Johnson,  116 
Mass.  482. 

If  the  words  published  are  fairly  capable  of  two  meanings, 
one  harmless  and  the  other  defamatory,  it  is  a  question  for  the 
jury  in  what  sense  readers  may  have  understood  them.  See 
Simmons  v.  Mitchell,  6  App.  Cas.  156.  If  the  declaration  is  de- 
murred to,  the  court  must  determine  whether  it  sets  out  a  good 
cause  of  action.  Goodrich  v.  Davis,  11  Met.  473;  Chenery  v. 
Goodrich,  uhi  supra;  Homer  v.  Engelhardt,  117  Mass.  539.  In 
Shattuck  V.  Allen,  4  Gray,  540,  "after  the  cause  was  opened  to 
the  jury,  it  being  objected  that  the  publication  was  not  libelous, 
and  the  court  inclining  to  that  opinion,  it  was  withdrawn  from 
the  jury,  and  submitted  to  the  whole  court."  The  court  said, 
that  the  point  whether  the  question  of  libel  or  no  libel  should 
have  been  sent  to  the  jury  M'as  not  made  at  the  trial,  or  re- 
served in  the  report,  and,  after  commenting  upon  the  law  and 
practice  in  this  respect,  entered  judgment  for  the  defendant. 

For  the  law  in  criminal  prosecutions  for  a  li])el,  see  Common- 
wealth V.  Anthes,  5  Gray,  185,  212,  et  seq.,  and  the  cases  cited 
in  the  dissenting  opinion  of  Mr.  Justice  Thomas. 


478  CONDUCT   OF    THE   TEIAL.  [ChAP.    IV. 

In  England,  by  the  St.  of  32  Geo.  Ill,  Chap.  60  (1792),  it  was 
provided  that,  on  the  trial  of  an  indictment  or  information  for  a 
libel,  the  jury  may  give  a  general  verdict,  and  shall  not  be  re- 
quired or  directed  by  the  court  to  find  the  defendant  guilty 
merely  on  proof  of  publication,  and  ' '  of  the  sense  ascribed  to  the 
same  in  such  indictment  or  information ; ' '  that  the  presiding 
judge  may  give  directions  to  the  jury  as  in  other  criminal  cases, 
and  the  jury  may  in  their  discretion  find  a  special  verdict ;  and 
the  defendant,  if  found  guilty,  may  move  in  arrest  of  judgment. 
This  act,  as  is  well  known,  was  designed  to  protect  defendants 
in  criminal  prosecutions  for  a  libel  from  the  power  of  the  judges ; 
but  it  has  undoubtedly  had  some  effect  upon  the  proceedings  in 
civil  actions.  In  civil  proceedings  for  a  libel  in  England,  it  is 
said  that  "it  is  only  when  the  judge  is  satisfied  that  the  publi- 
cation cannot  be  a  libel,  and  that,  if  it  is  found  by  the  jury  to  be 
such,  their  verdict  will  be  set  aside,  that  he  is  justified  in  with- 
drawing the  question  from  their  cognizance."  Kelly,  C.  B.,  in 
Cox  V.  Lee,  L.  R.  4  Ex.  284,  288.  Channell,  B.,  in  the  same  case, 
seems  to  have  been  of  opinion  that  in  every  civil  case,  at  the 
trial,  the  question  of  libel  or  no  libel  must  be  submitted  to  the 
jury ;  but  this  is  not  the  English  law.  The  existing  law  of  Eng- 
land is  not  stated  with  entire  accuracy  by  Kelly,  C.  B.,  as  is 
shown  by  Mulligan  v.  Cole,  L.  R.  10  Q.  B.  549 ;  Hart  v.  Wall,  2 
C.  P.  D.  146;  Hunt  v.  Goodlake,  43  L.  J.  (N.  S.)  C.  P.  54;  and 
Capital  &  Counties  Bank  v.  Henty,  5  C.  P.  D.  514 ;  S.  C.  7  App. 
Cas.  741. 

"We  are  satisfied  with  the  rule,  that,  at  the  trial  of  civil  actions 
for  a  libel,  it  is  only  when  the  court  can  say  that  the  publication 
is  not  reasonably  capable  of  any  defamatory  meaning,  and  can- 
not reasonably  be  understood  in  any  defamatory  sense,  that  the 
court  can  rule,  as  matter  of  law,  that  the  publication  is  not 
libelous,  and  withdraw  the  case  from  the  jury,  or  order  a  verdict 
for  the  defendant.^ 

We  cannot  say  that  the  publication  in  the  case  at  bar  does 
not  impute  to  the  plaintiff  an  intention  to  keep  possession  with- 

1  Compare   Negley   v.    Farrow,   60  fact   in   suits    and   prosecutions   for 

Md.  158.     When  the  question  arises  libel,    the    court    can    not    direct    a 

on  demurrer,  see  McGinnis  v.  Knapp,  verdict   for   the  plaintiff,   Heller   v. 

109   Mo.   131.     Under  the   eonstitu-  Pub.  Co.,  153  Mo.  205;  the  jury  can 

tional  provision  in  Missouri  making  not    determine    the    law    generally, 

the  jury  the  judges  of  both  law  and  but  are  limited  to  the  question  of 


Sec.  7.]  morgan  v.  halberstadt.  479 

out  paying  rent;  and  that  the  words,  "She  is  not  a  stranger 
here, — she  never  made  friends.  Can  find  out  all  about  her  by 
taking  a  little  trouble,"— do  not  convey  an  implication  or  in- 
sinuation that  the  plaintiff  is  considered  unfit  for  friendly  inter- 
course by  her  neighbors,  and  do  not  thus  tend  to  expose  her  to 
obloquy;  if  so,  the  publication  may  be  libelous.  We  think  the 
presiding  justice  erred  in  ruling,  as  matter  of  law,  that  the  pub- 
lication was  not  libelous,  and  in  not  submitting  the  question  to 

the  jury. 

Exceptions  sustained. 


MORGAN  V.  HALBERSTADT. 
60  Federal  Rep.  592.     [C.  C.  A.  1894.] 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

This  was  an  action  by  Sigismundo  E.  Halberstadt  against 
Henry  A.  Morgan,  as  president  of  the  New  York  Times,  for  libel. 
There  was  a  verdict  for  plaintiff  for  $15,000  damages,  and  judg- 
ment thereon,  and  defendant  brings  error. 

Lacombe,  Circuit  Judge.  The  complainant  sets  out  four  causes 
of  action,  based  on  separate  articles,  which  appeared  in  the  de- 
fendant 's  newspaper  on  September  5,  September  30,  October  10, 
and  November  1,  1891,  respectively. 

The  first  of  these  is  as  follows : 

"This  is  the  situation  in  the  Beers'  Mutual  Admiration  Society 
at  Broadway  and  Leonard  street.  Everything  is  done  to  avoid 
publicity  and  to  screen  the  truth.  Not  one  of  the  twenty  men 
composing  the  board  of  trustees,  save  those  two  or  three  who 
hold  executive  offices,  knew  of  the  Merzbacher  defalcation  until 
the  Times  exposed  it.  Not  one  of  these  men — these  alleged  guard- 
ians of  trust  funds— knows  that  Halberstadt,  Beers'  Mexican 
agent,  is  short  in  his  accounts  $28,000 ;  and  yet  this  same  Halber- 
stadt, while  standing  in  the  barroom  of  the  Hoffman  House,  early 
last  March,  surrounded  by  such  men  as  Merzbacher  and  Dinkel- 

whether  the  publication  is  libelous.  ley  v.  Steele,  159  Mo.  299;  or  be- 
Aniold  V.  Jewett,  125  Mo.  241;  the  cause  the  publication  is  not  action- 
court  may  direct  a  verdict  for  de-  able,  Ukman  v.  Daily  Record,  189 
fendant   in    case   of    privilege,    Fin-  Mo.   378. 


480  CONDUCT   OP   THE   TRIAL,  [ChAP.    IV. 

spiel,  boasted  of  the  manner  in  which  he  was  helping  himself  to 
the  company's  funds." 

The  second  is  as  follows: 

' '  The  policy  of  the  New  York  Life  with  reference  to  its  default- 
ing agents  in  Spanish  America  furnishes  another  explanation  of 
the  distrust  with  which  the  company  has  long  been  regarded  by 
the  policy  holders  in  Rio.  The  career  of  John  Davis,  for  instance, 
is  familiar  to  everybody  in  the  tropics  who  takes  an  interest  in 
insurance  matters.  Davis,  it  will  be  remembered,  handled  a 
business  of  $9,000,000  a  year  in  Mexico.  He  led  a  fast  life,  and 
when  he  disappeared  one  day  his  accounts  were  found  to  be 
short  $30,000.  No  attempt  was  made  to  arrest  him.  The  career 
of  the  two  agents  who  immediately  preceded  Davis  is  equally 
notorious  in  the  tropics.  These  agents,  or  one  of  them  at  least, 
owed  his  appointment  to  the  defaulter  Merzbacher.  Their  short- 
age was  found  to  be  $60,000.  Neither  of  them  was  arrested.  The 
case  of  the  intemperate  German  agent,  who  was  found  to  be 
short  in  his  accounts  $12,000,  in  Chile,  and  who  was  subsequently 
transferred  to  Mexico,  is  another  familiar  story.  This  agent 
was  not  only  not  punished,  but  he  was  transferred  to  another 
agency.  Then  came  the  defaulter  Merzbacher,  with  a  shortage 
of  $700,000  standing  opposite  his  name.  The  news  of  his  de- 
falcation was  received  in  Brazil  with  astonishment."     *     *     * 

1.  Plaintiff  in  error  assigns  error  in  the  instructions  to  the 
jury,  in  that  the  circuit  judge  charged  as  follows: 

' '  The  articles  in  the  New  York  Times  are  charged  in  the  com- 
plaint to  be  each  and  every  one  libelous.  The  explanation  (or, 
as  it  is  called  in  legal  phrase,  the  innuendo)  which  is  given  in 
the  complaint  of  the  meaning  of  the  articles  represents  that  the 
articles  were  libelous.  In  my  opinion,  gentlemen,  each  article  was 
in  fact  libelous. ' ' 

To  which  charge  defendant  duly  excepted. 

The  very  authorities  cited  by  the  plaintiff  in  error  abundantly 
sustain  this  part  of  the  charge.  They  hold  that  the  language 
used  must  be  given  its  ordinary  meaning ;  that  the  test  is  whether, 
in  the  mind  of  an  intelligent  man,  the  language  naturally  im- 
ports a  criminal  or  disgraceful  charge;  that  the  language  is  to 
be  understood  by  the  court  in  the  sense  in  which  the  world  gen- 
erally would  understand  it,  giving  to  the  words  their  ordinary 
meaning:  that  the  language  is  to  be  understood  in  the  ordinary 
and  most  natural  sense ;  and  that,  when  the  writing  complained 


Sec.  7.]  morgan  v.  halberstadt.  481 

of  is  plain  and  unambiguous,  the  question  in  a  civil  action, 
whether  it  is  a  libel  or  not  is  a  question  of  law.  Hayes  v.  Ball, 
72  N.  Y.  420 ;  More  v.  Bennett,  48  N.  Y.  472 ;  Williams  v.  Godkin, 

5  Daly,  499 ;  Weed  v.  Foster,  11  Barb.  203 ;  Snyder  v.  Andrews, 

6  Barb.  43 — to  which  list  of  authorities  may  be  added  Rue  v. 
Mitchell,  2  Dall.  58,  holding  that  "the  sense  in  which  words  are 
received  by  the  world  is  the  sense  which  courts  of  justice  ought 
to  ascribe  to  them ' '  on  the  trial  of  actions  such  as  this.  Plaintiff 
in  error  apparently  concedes  upon  his  brief  that  the  court  cor- 
rectly construed  the  language  of  the  second  and  fourth  articles, 
but  contends  that  the  first  and  third  were  ambiguous,  and  should 
have  been  left  to  the  jury.  The  contention  is  frivolous.  No  in- 
telligent man  reading  these  articles  could  fail  to  understand  that 
the  author  of  the  first  one  charged  an  agent  through  whose  hands 
moneys  of  a  corporation  passed,  not  only  with  being  short  in  his 
accounts  $28,000,  but  also  with  openly  boasting  of  the  manner 
in  which  he  was  helping  himself  to  the  company's  funds.  Nor 
could  the  intelligent  reader  fail  to  understand  that  the  third 
article  charged  that  Halberstadt  had  been  given  unlimited  op- 
portunities to  swindle  and  deceive  the  policy  holders,  and  had 
availed  himself  of  such  opportunities.  If  these  excerpts  do  not 
charge  the  crime  of  embezzlement,  they  do  certainly  charge  dis- 
graceful conduct,  exposing  the  party  assailed  to  odium  and  con- 
tempt.    And  there  is  no  ambiguity  about  the  language  used.^ 

Defendant's  counsel  asked  the  court  to  charge  that  the  words 
in  the  first  article,  "Halberstadt,  Beers'  Mexican  agent,  is  short 
•in  his  accounts,"  do  not  necessarily  impute  dishonesty.  The 
court  charged  that  "these  simple  words  do  not  necessarily  and 
of  themselves,  without  anything  else  in  the  case,  impute  dishon- 
esty;" but  added  that  "the  entire  article,  as  set  forth  in  that 
clause  of  the  complaint,  is  libelous."  This  was  all  defendant 
was  entitled  to,  for  the  article  must  be  considered  as  a  whole; 
and  if,  as  a  whole,  it  is  libelous,  the  circumstance  that  it  contains 
some  innocuous  statements  will  not  relieve  defendant  from  re- 
sponsibility for  its  publication.  The  exceptions  to  this  part  of  the 
charge  are  therefore  unsound.     *     *     * 

1  See  also  Smith  v.  Sun  Printing  to  the  plaintiff  is  normally  a  ques- 

Assn.,  55  Fed.  240.  tion   for   the   jury,  Ball   v.   Evening 

Whether  the  publication   referred  American,  237  111.   592. 
H.  T.  p.— 31 


482  CONDUCT   OF   THE   TEIAL.  [ChAP.    IV. 

CAPITAL  AND  COUNTIES  BANK  v.  HENTY. 
L.  R.  7  Appeal  Cases,  741.     [1882.] 

This  is  an  action  of  libel,  the  issues  in  which  have  been  tried 
before  the  Lord  Chief  Justice  and  a  jury ;  the  jury  disagreed  and 
there  was  no  verdict ;  before  the  case  could  be  set  down  again  the 
defendants  applied  to  the  Common  Pleas  Division  to  enter 
judgment  for  them  in  accordance  with  Order  XL,  Rule  10,  of  36  & 
37  Vict.  Chap.  66,  upon  the  ground  that  the  court  had  before  it 
all  the  materials  necessary  for  finally  determining  the  matters  in 
dispute  without  the  verdict  of  a  jury.  The  Common  Pleas 
Division  refused  the  application,  which  has,  however,  been  ac- 
ceded to,  and  judgment  entered  for  the  defendants,  by  the  Court 
of  Appeal.  It  is  from  that  judgment  that  the  present  appeal 
is  made.^     *     *     * 

Lord  Blackburn.  My  Lords,  the  plaintiffs'  claim  is  thus 
stated:  "1.  The  plaintiffs  are  bankers,  and  the  defendants  are 
brewers.  2.  The  defendants  falsely  and  maliciously  wrote  and 
published  of  the  plaintiffs  the  letter  following:  'Messrs.  Henty 
&  Sons  hereby  give  notice  that  they  will  not  receive  in  payment 
cheques  drawn  on  any  of  the  branches  of  the  Capital  and  Coun- 
ties Bank  (late  the  Hampshire  and  North  Wilts).  Westgate, 
Chichester,  2d  December,  1878. '  Meaning  thereby  that  the  plain- 
tiffs were  not  to  be  relied  upon  to  meet  the  cheques  drawn  on 
them,  and  that  their  position  was  such  that  they  were  not  to  be 
trusted  to  cash  the  cheques  of  their  customers."-     *     *     * 

On  the  trial  evidence  was  given  on  both  sides,  and  on  the  proof 
being  completed  the  case  was  left  to  the  jury,  who  did  not  agree, 
and  were  discharged.  The  plaintiffs  desire  that  the  case  should 
go  for  trial  before  another  jury.  The  defendants'  contention  is, 
that  they  are  entitled  to  judgment  on  the  ground  that,  if  the  jury 
had  found  in  favor  of  the  plaintiffs  every  circumstance  relating 
to  the  publication  which  the  evidence  could  prove,  and  even 
though  the  jury  had  found  that,  in  their  opinion,  the  letter  was 
libelous,  the  court  ought  to  come  to  the  conclusion  that  the  letter 
published  under  those  circumstances  was  no  libel,  and  acting  on 

1  Statement    by    Lord    Penzance.  2  The    evidence    showed    that    the 

On   account   of  the  great  length  of  letter  was  written  and  published  as 

this     case     his     dissenting     opinion  a    result  of   a   business   dispute   be- 

has  been  omitted.  tween  the  parties. 


Sec.  7.]       capital  and  counties  bank  v.  henty.  483 

its  own  conclusion  give  judgment  for  the  defendants,  not  setting 
that  verdict  aside  as  not  satisfactory,  but  letting  it  stand  and 
giving  judgment  for  the  defendants,  notwithstanding  that  ver- 
dict. If  this  is  right,  it  follows  that  the  case  ought  not  to  be 
sent  to  another  jury. 

The  decision  of  the  cause  depends,  first,  on  the  question  what 
is  the  province  of  the  court  in  an  action  for  libel,  and  whether, 
where  the  writing  is  such  that  opinions  might  differ  as  to  whether 
it  is  a  libel  or  not,  the  court  can  give  judgment  for  the  defendant, 
on  the  ground  that,  though  the  jury  have  found  that  in  their 
opinion  the  writing  is  a  libel,  the  court  do  not  think  it  made  out 
to  be  a  libel ;  that  is  a  question  of  great  public  interest ;  secondly, 
whether,  supposing  that  this  can  be  done,  the  state  of  the  evi- 
dence in  this  case  as  to  the  publication  is  such  that  the  court 
ought  to  come  to  the  conclusion  that  this  is  no  libel.  This  is  of 
importance  to  the  parties,  but  except  in  so  far  as  it  may  illustrate 
the  meaning  of  the  first  general  proposition,  it  is  not  of  general 
importance.  I  have  had  and  still  have  very  great  difficulty  in 
making  up  my  mind  on  this  second  branch  of  the  case.  I  will 
first  state  my  opinion  on  the  first  question. 

A  libel  for  which  an  action  will  lie,  is  defined  to  be  a  written 
statement  published  without  lawful  justification,  or  excuse,  cal- 
culated to  convey  to  those  to  whom  it  is  published  an  imputation 
on  the  plaintiffs,  injurious  to  them  in  their  trade,  or  holding 
them  up  to  hatred,  contempt,  or  ridicule.  It  must  be  shown  by 
evidence  that  there  was  a  writing,  and  that  it  was  published.  I 
shall  afterwards  say  something  as  to  what  publications  are  privi- 
leged, so  as  to  afford  a  lawful  justification  or  excuse  for  the  pub- 
lication, though  calculated  to  convey  a  libelous  imputation.  But, 
independently  of  all  questions  as  to  privilege,  the  manner  of  the 
publication,  and  the  things  relative  to  which  the  words  are  pub- 
lished, and  which  the  person  publishing  knew,  or  ought  to  have 
known,  would  influence  those  to  whom  it  was  published  in  putting 
a  meaning  on  the  words,  are  all  material  in  determining  whether 
the  writing  is  calculated  to  convey  a  libelous  imputation.  There 
are  no  words  so  plain  that  they  may  not  be  publi.shed  with  refer- 
ence to  such  circumstances,  and  to  such  persons  knowing  these 
circumstances,  as  to  convey  a  meaning  very  different  from  that 
which  would  be  understood  from  the  same  words  used  under 
different  circumstances. 

I  think  that  from  the  earliest  times  it  has,  by  the  law  of  Eng- 


484  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

land,  been  the  province  of  the  court  to  say  whether  words  pub- 
lished in  writing  were  a  libel  or  not ;  and  in  order  that  a  court 
of  error  might  have  before  it  the  materials  for  enabling  it  to  say 
whether  the  decision  of  the  court  below  was  right  or  not,  the 
plaintiff  was,  by  the  old  rules  of  pleading,  required  to  place  all 
those  materials,  on  which  he  relied,  upon  the  record.  The 
words  themselves  must  have  been  set  out  in  the  declaration  or  in- 
dictment, in  order  that  the  court  might  be  able  to  judge  whether 
they  were  a  libel  or  not.  And  this  still  remains  the  law  (see 
Bradlaugh  v.  The  Queen,  3  Q.  B.  D.  607;  Harris  v.  Warre,  4 
C.  P.  D.  125). 

In  construing  the  words  to  see  whether  they  are  a  libel,  the 
court  is,  where  nothing  is  alleged  to  give  them  an  extended  sense, 
to  put  that  meaning  on  them  which  the  words  would  be  under- 
stood by  ordinary  persons  to  bear,  and  say  whether  the  words  so 
understood  are  calculated  to  convey  an  injurious  imputation. 
The  question  is  not  whether  the  defendant  intended  to  convey 
that  imputation;  for  if  he,  without  excuse  or  justification,  did 
what  he  knew  or  ought  to  have  known  was  calculated  to  injure 
the  plaintiff,  he  must  (at  least  civilly)  be  responsible  for  the  con- 
sequences, though  his  object  might  have  been  to  injure  another 
person  than  the  plaintiff,  or  though  he  may  have  written  in  levity 
only.  As  was  said  in  the  opinion  of  the  judges  delivered  in  the 
House  of  Lords  during  the  discussion  of  Fox's  Bill,  I  think  quite 
justly,  no  one  can  cast  about  firebrands  and  death,  and  then 
escape  from  being  responsible  by  saying  he  was  in  sport. 

If  there  were  circumstances  relating  to  the  publication  which 
it  was  alleged  caused  the  words  to  bear  a  more  extended  sense 
than  they  would  otherwise  do,  the  law  was  that  those  must  be 
stated  on  the  record,  in  order  to  enable  the  court  to  judge  whether 
the  words  understood  with  reference  to  those  circumstances  bore 
that  more  extended  sense,  or  else  those  circumstances  could  not 
be  looked  at  in  favor  of  the  plaintiff.  Great  nicety  was  required 
in  setting  out  those  circumstances,  and  the  rule  of  pleading  has 
been  altered  in  that  respect  by  the  Common  Law  Procedure  Act, 
1852,  and  the  Judicature  Act;  but  the  law  which  gave  rise  to 
the  old  mode  of  pleading  has  not  been  altered  by  those  acts.  I 
shall  say  more  as  to  the  effect  of  this  change  in  the  mode  of 
pleading  afterwards.  It  never  was  disputed  that  there  was  much 
which  could  only  be  decided  by  the  jury.  Whether  the  words 
as  published  bore  the  meaning  alleged  where  there  was  an  in- 


Sec.  7.]        capital  and  counties  bank  v.  henty. 


485 


nuendo,  or  any  libelous  imputation  where  there  was  no  innuendo, 
was  a  question  which  the  defendant  could  raise  on  the  general 
issue,  and  the  jury  must  decide  that  question  when  raised. 

But  there  were  a  series  of  decisions,  the  last  and  most  im- 
portant of  which  was  the  famous  case  of  the  Dean  of  St.  Asaph. 
The  fullest  and  best  report  of  that  case  is  that  prepared  by  Lord 
Glenbervie,  and  published  under  the  name  of  R.  v.  Shipley,  4 
Doug.  73.  The  headnote,  I  think  very  accurately,  states  what  was 
decided  by  the  majority  of  the  court.  ' '  On  the  trial  of  an  indict- 
ment for  a  libel  the  only  questions  for  the  jury  are  the  fact  of 
publication,  and  the  truth  of  the  innuendoes.  The  question  of 
libel  or  no  libel  is  necessarily  a  question  of  law  for  the  sole  con- 
sideration of  the  court  out  of  which  the  record  comes,  and  on 
which  the  judge  at  the  trial  is  not  called  upon  to  give  his  opinion 
to  the  jury."  Lord  Mansfield  laid  it  down  that  "by  the  con- 
stitution the  jury  ought  not  to  decide  the  question  of  law  whether 
such  a  writing,  of  such  a  meaning,  published  without  a  lawful 
excuse,  be  criminal.  They  cannot  decide  it  against  the  defend- 
ant, because  after  verdict  it  remains  open  upon  the  record; 
therefore  it  is  the  duty  of  the  judge  to  advise  the  jury  to  separate 
the  question  of  fact  from  the  question  of  law ;  and  as  they  ought 
not  to  decide  the  law,  and  the  question  remains  entire  upon  the 
record,  the  judge  is  not  called  upon  necessarily  to  tell  them  his 
opinion.  It  is  almost  peculiar  to  the  form  of  prosecution  for 
a  libel  that  the  question  of  law  remains  entirely  for  the  court 
upon  the  record,  and  that  the  jury  cannot  decide  it  against  the 
defendant ;  so  that  a  general  verdict  that  the  defendant  is  guilty 
is  equivalent  to  a  special  verdict  in  other  cases.  It  finds  all  which 
belongs  to  the  jury  to  find,  an^  finds  nothing  as  to  the  question 
of  law.  Therefore  when  a  jury  have  been  satisfied  as  to  every 
fact  within  their  province  to  find,  they  have  been  advised  to  find 
the  defendant  guilty,  and  in  that  shape  they  take  the  opinion 
of  the  court  upon  the  law."    (4  Doug.  164,  165.)     *     *     * 

It  seems  to  rae  clear  tliat  whilst  Lord  ]\Iansfield  held  that  the 
question  of  libel  or  no  libel  was  one  exclusively  for  the  court, 
Willes,  J.,  held  that  it  was  also  a  question  for  the  jury ;  but  he 
did  not  hold  it  to  be  a  question  exclusively  for  the  jury.  On  the 
contrary,  whilst  holding  that  if  the  jury  found  the  defendant 
not  guilty  it  was  conclusive  in  his  favor,  he  expressly  held  that 
after  a  verdict  of  guilty  it  still  was  competent  for  the  defendant 
to  take  the  opinion  of  the  court  as  to  whether  the  publication  was 


486  CONDUCT   OF    THE   TRIAL.  [ChAP,    IV. 

libelous  or  not.  He  says  (p.  176),  "If  it"  (the  tract  which  the 
dean  had  published)  "contains  nothing  but  what  Lord  Somers 
would  have  approved,  and  the  Convention  Parliament  have  war- 
ranted" (which  is  what  the  dean  had  asserted  in  an  advertise- 
ment) "then  the  publication  is  harmless  and  inoffensive;  but 
if  it  tends  to  excite  the  people  to  take  arms,  to  alter  the  estab- 
lished representation  of  this  country  without  the  consent  of 
Parliament,  it  may  not  only  be  seditious  but  nearly  treasonable. 
I  give  no  opinion  upon  this  head,  as  this  will  be  a  proper  subject 
of  discussion  if  a  motion  is  made  in  arrest  of  judgment."  A 
motion  was  made  in  arrest  of  judgment,  and  the  judgment  was 
arrested.  I  have  never  seen  any  report  of  the  grounds  on  which 
the  judgment  was  arrested. 

It  is  no  longer  material  whether  Lord  Mansfield  or  Willes, 
J.,  was  right  in  his  view  of  the  law  as  it  stood  in  1784,  for  by 
32  Geo.  3,  e.  60,  it  is  enacted  by  the  first  section  what  the  law 
shall  be  in  future.  The  legislature  has  adopted  almost  the  words 
and  quite  the  substance  of  that  part  of  Willes',  J.,  judgment 
which  I  have  first  quoted ;  and  from  that  time,  A.  D.  1792,  there 
can  be  no  doubt  that  a  defendant  cannot  be  convicted  of  libel 
unless  the  jury  find  that  the  tendency  of  the  publication  was 
libelous.  But  the  legislature,  passing  an  enactment  in  favor 
of  defendants,  had  no  intention  to  put  them  in  a  worse  position 
than  before,  and  to  make  the  verdict  of  a  jury  conclusive  against 
the  defendants.  Nor  did  they  enact  that  the  judge  might  not  in 
this,  as  in  other  criminal  cases,  direct  the  jury  to  acquit  because 
he  thought  that  the  case  had  failed  in  law;  it  would,  I  think, 
have  been  very  injudicious  to  do  so,  for  jurors  are  sometimes 
excited  against  defendants,  though  more  commonly  they  are  ex- 
cited in  their  favor.  And  the  legislature  by  the  fourth  section 
provided  that  the  defendant  should  still,  though  found  guilty 
by  the  jury,  have  the  power  to  take  the  opinion  of  the  court  on 
the  question  of  law,  by  moving  in  arrest  of  judgment  as  before 
that  act. 

The  case  of  R.  v.  Shipley  (4  Doug.  73)  was  a  criminal  proceed- 
ing at  the  instance  of  the  crown,  and  32  Geo.  3,  c.  60,  is  in  terms 
confined  to  such  proceedings.  But  though  no  doubt  the  court  has 
more  power  to  set  aside  verdicts  in  civil  cases,  there  is  no  reason 
why  the  functions  of  the  court  and  jury  should  be  different  in 
civil  proceedings  for  a  libel  and  in  criminal  proceedings  for  a 
libel.     And  accordingly  it  has  been  for  some  years  generally 


m 


Sec.  7.]        capital  and  counties  bank  v,  henty,  487 

thought  that  the  law,  in  civil  actions  for  libel,  was  the  same  as 
it  had  been  expressly  enacted  that  it  was  to  be  in  criminal  pro- 
ceedings for  libel. 

It  certainly  had  always  been  my  impression  that  there  was 
a  difference  between  the  position  of  the  prosecutor,  or  plaintiff, 
and  that  of  the  defendant.  The  onus  always  was  on  the  prose- 
cutor or  plaintiff  to  show  that  the  words  conveyed  the  libelous 
imputation,  and  if  he  failed  to  satisfy  that  onus,  whether  he  had 
done  so  or  not  being  a  question  for  the  court,  the  defendant  al- 
ways was  entitled  to  go  free.  Since  Fox's  act  at  least,  however 
the  law  may  have  been  before,  the  prosecutor  or  plaintiff  must 
also  satisfy  a  jury  that  the  words  are  such,  and  so  published,  as 
to  convey  the  libelous  imputation.  If  the  defendant  can  get 
either  the  court  or  the  jury  to  be  in  his  favor,  he  succeeds.  The 
prosecutor,  or  plaintiff,  cannot  succeed  unless  he  gets  both  the 
court  and  the  jury  to  decide  for  him. 

Now  it  seems  to  me  that  when  the  court  come  to  decide  whether 
a  particular  set  of  words  published  under  particular  circum- 
stances are  or  are  not  libelous,  they  have  to  decide  a  very  different 
question  from  that  which  they  have  to  decide  when  determining 
whether  another  tribunal,  whether  a  jury  or  another  set  of  judges 
might,  not  unreasonably,  hold  such  words  to  be  libelous.  In  fact, 
whenever  a  verdict  has  passed  against  a  defendant  in  a  case  of 
libel,  and  judgment  has  been  given  in  the  court  below,  those  who 
bring  their  writ  of  error  on  the  ground  that  there  was  no  libel, 
assert  that  both  the  jury  and  the  court  below  have  gone  wrong; 
but  they  are  not  called  upon  to  say  that  the  words  were  incapable 
of  conveying  the  libelous  imputation ;  it  is  enough  if  they  can 
make  out,  to  the  satisfaction  of  the  court  in  error,  that  the  onus 
of  showing  that  they  do  convey  such  an  imputation  is  not  satis- 
fied ;  and  there  are  numerous  cases  in  which,  after  a  verdict  for 
the  plaintiff  and  judgment  for  him,  that  judgment  has  been  set 
aside  in  error. 

It  was  argued  by  the  appellants'  counsel  at  your  lordships' 
bar  that,  if  the  words  were  capable  at  all  of  conveying  the  libelous 
imputation,  the  plaintiff  had  a  right  to  have  the  question  left 
to  the  jury.  I  asked  for  authorities  for  the  proposition  laid 
down  by  the  plaintiffs'  counsel  in  addition  to  the  expressions 
used  by  Grove,  J.,  and  Denman,  J.,  which  certainly  look  as  if 
those  learned  judges  took  that  view.  Two,  and  only  two,  authori- 
ties were  produced.     Some  expressions  used  by  Wilde,  C.  J., 


488  CONDUCT    OF    THE   TRIAL.  [ChAP.    IV. 

in  dt4ivt' ring  the  judgment  of  the  Exchequer  Chamber  in  Sturt  v. 
Blagg  (10  Q.  B.  908)  were  cited,  but  they,  I  think,  do  not  bear 
the  meaning  supposed.  No  question  of  this  kind  was  before  the 
court.     *     *     * 

The  other  case  relied  on  as  an  authority  was  Hart  v.  Wall 
(2  C.  P.  D.  146),  where  the  Common  Pleas,  consisting  of  Lord 
Coleridge  and  Lindley,  J.,  set  aside  a  nonsuit  entered  by 
Archibald,  J.,  after  consulting  Quain,  j.     *     *     * 

And  it  may  be  that  it  was  thought  not  only  that  it  was  for  the 
jury  to  find  the  meaning  (which  Lord  Mansfield  admitted),  and 
also  that  the  jury  were  not  bound  to  find  for  the  plaintiff,  what- 
ever the  court  might  think,  unless  the  jury  thought  the  publication 
such  that  the  meaning  was  calculated  to  convey  a  libelous  impu- 
tation— which  since  Fox 's  act,  if  not  before,  I  think  is  the  law — 
but  also  that  if  the  jury  found  those  questions  for  the  plaintiff  it 
was  conclusive  on  the  court,  unless  they  could  see  that  the  words 
were  incapable  of  conveying  such  an  imputation ;  and  if-  such  was 
the  decision  in  Hart  v.  Wall  it  is  an  authoritj-  for  the  argument 
of  the  plaintiffs'  counsel,  and  as  far  as  I  know  the  only  one. 
And  I  think  there  is  authority  against  it.     *     *     * 

I  may  observe  here  that  I  agree  with  what  was  argued  at  the 
bar,  that  Fisher  v.  Clement  (10  B.  &  C.  472)  shows  that  the 
real  question  was  not  what  was  the  intention  with  which  the  libel 
was  published,  but  w^hat  was  the  tendency  of  the  libel  as  pub- 
lished ;  and  consequently  that  Abbott,  C.  J.,  if  correctly  reported, 
made  the  same  verbal  slip  in  Goldstein  v.  Foss  (6  B.  &  C.  154), 
which  he  afterwards,  as  Lord  Texterden,  made  in  Fisher  v. 
Clement.  But  subject  to  this  slight  correction,  I  think  Abbott, 
C.  J.,  here  states  not  only  that  it  was  a  question  for  the  court 
whether  the  publication  was  shown  to  be  libelous,  but  correctly 
states  the  principle  on  which  the  court  is  to  proceed,  viz.,  that 
unless  the  plaintiff  has  so  far  satisfied  the  onus  which  lies  on  him 
to  show  it  to  be  a  libel  that  the  court  can,  with  sufficient  cer- 
tainty, say  that  the  writing  has  a  libelous  tendency,  they  should 
not  so  say.  The  plaintiff  in  Goldstein  v.  Foss  did  not  submit  to 
this  judgment.  He  brought  error,  but  the  judgment  was  affirmed 
(2  Y.  &  J.  146). 

The  Common  Law  Procedure  Act,  1852,  §  61,  was  intended  to 
remove  the  ditificulties  which  a  plaintiff  had  in  putting  a  real 
cause  of  action  on  the  record,  with  sufficient  technical  precision. 
But  it  was  not  intended  to  alter  the  law,  or  to  deprive  the  defend- 


Sec.  7.]        capital  and  counties  bank  v.  henty.  489 

ant  of  his  right  to  ask  the  court  to  say  that  words  alleged  to  be  a 
libel,  or  actionable  slander,  though  found  by  the  jury  to  be  so, 
were  not  so  in  the  judgment  of  the  court.  It  deprived  him  of 
his  right  to  move  in  arrest  of  judgment,  for  the  materials,  on 
which  the  question  whether  the  words  written  or  spoken  were 
used  in  the  defamatory  sense  has  to  be  decided,  are  no  longer 
on  the  record.  But  when  the  proof  is  complete,  and  all  that  can 
be  properly  found  on  that  proof  in  favor  of  the  plaintiff  is  found 
for  him,  the  court  have,  I  think,  exactly  the  same  power  that 
they  had  before,  and  if  they  are  of  opinion  that  if  all  which 
could  be  found  had  been  put  on  the  record  under  the  old 
system,  the  judgment  would  have  been  arrested,  they  should  give 
judgment  for  the  defendant.  This  was  done,  and  I  think  rightly 
done,  in  Mulligan  v.  Cole  (Law  Rep.  10  Q.  B.  549). 

This  brings  me  to  the  question  on  which  there  has  been  a 
difference  of  opinion  amongst  the  judges  of  the  Court  of  Appeal, 
and  on  which  I  have  felt  and  still  feel  great  difficulty,  namely, 
whether  the  evidence  here  was  such  as  would  justify  a  jury  in 
finding  that  the  publication  was  such,  and  so  made,  that  the  court 
would  not  say,  after  a  verdict  for  the  plaintiff,  that  the  court 
thought  it  not  sufficientl.y  shown  to  be  a  libel.     *     *     * 

The  question,  therefore,  seems  to  me  whether,  by  showing  such 
a  publication  the  plaintiffs  have  so  far  satisfied  the  onus  which  is 
on  them,  that  the  court  can  (to  adopt  Lord  Tenterden's  lan- 
guage) with  reasonable  certainly  say  that  the  tendencj^  of  the 
letter  was  to  convey  the  libelous  imputation. 

There  can  be  no  doubt  that  the  defendants  were  not  required 
to  take  checks  drawn  on  this  bank  on  account  of  any  debts 
due  to  them,  or  in  any  other  way  whatsoever,  and  had  a  right  to 
refuse  to  do  so.  No  reason  was  needed  to  justify  such  a  refusal. 
Such  a  refusal  could  not  be  made  without  using  words  which, 
whether  written  or  spoken  without  sufficient  occasion  to  give  rise 
to  a  privilege,  would  be  actionable  if  the  tendency  of  those  words 
would  be  to  cast  a  doubt  on  the  credit  of  the  bank.  I  think, 
however,  that  there  are  so  many  reasons  why  a  person  may  refuse 
to  take  on  account  the  checks  drawn  on  a  particular  bank,  that, 
acting  in  the  spirit  of  what  Lord  Tenterden  said  in  Goldstein 
V.  Foss,  the  court  could  not  say  that  the  letter,  which  in  terms 
goes  no  further  than  merely  to  state  the  fact,  was  libelous,  as 
tending  to  impute  a  doubt  of  the  credit  of  the  bank.  No  doubt 
some  people  might  guess  that  the  refusal  was  on  that  ground, 


490  CONDUCT   OP   THE   TRIAL.  [ChAP.    IV. 

but  as  Brett,  L.  J.,  says,  it  is  unreasonable  that  when  there  are 
a  number  of  good  interpretations,  the  only  bad  one  should  be 
seized  upon  to  give  a  defamatory  sense  to  the  document.  I  do  not 
think  it  libelous  by  itself  to  state  the  fact.  But  I  quite  agree 
that  such  a  statement  might  be  published  in  such  a  way,  and  to 
such  persons,  as  to  show  that  its  natural  tendency  would  be  to 
convey  an  impression  that  the  person  refusing  to  take  the  checks 
on  that  bank  did  doubt  its  credit,  and  then  it  would  be  libelous. 

I  think,  therefore,  that  the  only  cjuestion  is  whether  there  was 
here  evidence  from  which  such  facts  could  be  found  as,  in  the 
opinion  of  the  court,  would  satisfy  the  onus,  which,  I  think,  lies 
on  the  plaintiffs,  to  show  that  this  publication  had  a  libelous 
tendency.  And  as  I  am  of  opinion  that  there  was  not,  I  think 
that  the  judgment  should  be  affirmed. 

Judg^nent  appealed  from  affii-^ned;  and  appeal  dismissed  with 
costs. 


GREENWADE  v.  MILLS. 

31  Mississippi,  464.     [1856.] 

Handy,  J.,  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  by  the  defendant  in  error  for  a 
malicious  prosecution  instituted  against  him  by  the  plaintiff  in 
error,  in  causing  him  to  be  arrested  and  imprisoned  upon  a 
charge  of  stealing  a  negro  slave,  the  property  of  the  plaintiff 
in  error,  of  which  charge  he  was  acquitted.     *     *     * 

On  the  part  of  the  defendant  it  was  proved  that  the  slave  in 
question  had  been  the  property  of  John  M.  Burnett,  who,  while 
the  slave  was  an  infant,  had  made  a  verbal  gift  of  her  to  one 
Mrs.  Elliott,  who  took  possession  and  held  her  for  more  than 
a  year,  and  sold  her  to  one  Cain,  by  whom  she  was  given  to  his 
daughter,  the  defendant's  wife;  that  she  remained  in  the  pos- 
session of  Greenwade  from  some  time  in  the  year  1844  until 
December,  1849,  at  which  time  the  plaintiff  came  to  the  premises 
of  the  defendant  late  at  night,  or  about  daybreak,  on  horseback, 
and  clandestinely  took  the  slave  from  the  defendant's  negro 
cabins,  and  placing  her  behind  him  on  his  horse,  rapidly  fled, 
taking  her  away;  that  when  Burnett  made  the  gift  to  Mrs. 


Sec.  7.]  Humphries  v.  parker.  491 

Elliott  he  was  about  sixteen  years  of  age,  but  that  he  became 
of  lawful  age  in  July,  1847;  and  in  January,  1848,  that  he 
acknowledged  he  had  given  the  slave  to  Mrs.  Elliott  and  stated 
that  he  made  no  claim  to  her,  and  was  willing  to  make  a  deed  of 
gift,  or  a  bill  of  sale  to  Mrs.  Elliott,  or  to  the  defendant,  if  he 
knew  to  which  of  them  to  make  it.     «=     *     * 

The  verdict  being  for  the  plaintiff,  the  defendant  moved  for 
a  new  trial  upon  several  grounds ;  which  motion  being  overruled, 
exceptions  were  taken,  upon  which  the  case  is  brought  here. 

The  first  objection  made  is  to  the  instructions  granted  at  the 
instance  of  the  plaintiff. 

The  second  instruction  granted  at  the  plaintiff's  instance  is, 
that  "if  the  jury  believe,  from  the  evidence,  that  Greenwade 
knew  that  Mills  had  title  to  the  slave  at  the  time  of  the  arrest, 
and  if  they  further  believe  that  Greenwade  had  no  title  to  said 
slave,  then  they  must  find  for  Mills,  and  assess  such  damages  as, 
in  their  opinion,  the  plaintiff  ought  to  have."     *     *     * 

But  the  latter  branch  of  the  instruction  is  clearly  erroneous 
in  referring  the  question  whether  the  defendant  had  title  to  the 
slave,  to  the  jury.  If  left  to  them  to  determine  whether,  under 
the  facts  shown  in  behalf  of  the  plaintiff,  and  on  the  part  of  the 
defendant,  the  defendant  had  title — this  was  submitting  a  ques- 
tion of  law  to  the  jury.  It  was  the  duty  of  the  court  to  instruct 
the  jury  that  if  they  believed,  from  the  evidence,  the  particular 
facts  relied  on  by  the  plaintiff  to  exist,  then  the  title  was  in  him ; 
and  to  give  a  similar  instruction  with  reference  to  the  facts  upon 
which  the  defendant's  title  rested.  Thus  the  law,  applicable  to 
the  question,  would  have  been  settled  by  the  court,  and  the  facts 
to  which  it  might  apply,  submitted  to  the  jury.  But  by  this 
instruction  the  entire  question  of  title,  both  as  to  law  and  fact, 
was  referred  to  the  jury.     *     *     * 

Judgment  reversed. 


HUMPHRIES  v.  PARKER. 

52  Maine,  502.      [1864.] 

Walton,  J.  *  *  *  2.  The  defendant  complains  that  the 
question  of  probable  cause  was  left  to  the  jury,  when  it  should 
have  been  decided  by  the  court;  and  that  the  instruction  as  to 


492  CONDUCT   OF    THE   TRIAL,  [ChAP.    IV. 

what  constitutes  probable  cause  was  erroneous.  The  question  of 
probable  cause  is  a  mixed  proposition  of  law  and  fact.  Whether 
the  circumstances  alleged  to  show  it  probable  are  true  and  existed, 
is  a  matter  of  fact  for  the  jury.  But  whether,  supposing  them 
true,  they  amount  to  probable  cause,  is  a  question  of  law  for  the 
court.  The  exceptions  fail  to  satisfy  us  that  anything  more  was 
left  to  the  jury  in  this  case  than  legitimately  belonged  to  them. 
Nor  are  we  able  to  discover  any  error  in  the  instructions  of  the 
presiding  judge  as  to  what  constitutes  probable  cause.  He  told 
the  jury  that  there  is  a  want  of  probable  cause,  when  a  party 
institutes  a  prosecution  without  reasonable  grounds  for  believing 
the  party  guilty.  This  was  undoubtedly  correct.  He  then  de- 
fined reasonable  grounds  to  be  such  as  w^ould  warrant  an  impartial 
and  candid  mind,  exercising  ordinary  care,  caution  and  dis- 
crimination, in  believing  a  party  guilty.  This  we  think  was 
correct.  He  then  told  the  jury  that  probable  cause  did  not  always 
depend  upon  the  real  and  exact  facts,  but  might  depend  upon  the 
honest  belief  of  the  party  prosecuting,  but  that  it  must  be  a 
belief  honestly  entertained,  and  derived  from  facts  and  evidences 
which  in  themselves  were  sufficient  to  justify  a  man  who  was 
calm,  and  not  governed  by  passion,  prejudice  or  want  of  ordinary 
caution  and  care,  in  believing  the  party  guilty.  This,  also,  we 
think  correct.  There  is  no  doubt  that  actual  belief,  and  reason- 
able grounds  for  that  belief,  are  essential  to  constitute  probable 
cause.  However  strong  the  evidence  might  be,  yet,  if  the  party 
prosecuting  did  not  believe  the  party  was  guilty,  he  would  not 
be  justified  in  prosecuting  him.-  Nor  is  mere  belief  enough ;  for, 
if  this  were  so,  the  court  would  never  be  required  to  judge  of 
the  sufficiency  of  the  grounds  for  that  belief,  as  the  law  now 
requires  them  to  do.  Belief,  and  reasonable  grounds  for  that 
belief,  are  undoubtedly  both  essential  elements  in  the  justification 
of  probable  cause.  We  see  nothing  to  disapprove  of  in  the 
instructions  of  the  presiding  judge,  bearing  upon  the  question 
of  probable  cause.  They  seem  to  be  in  accordance  with  the  best 
and  most  approved  authorities. 

Either  party,  upon  request,  would  have  been  entitled  to  a 
direct  and  specific  instruction  from  the  presiding  judge,  as  to 
whether  the  alleged  facts  set  up  in  defense,  if  proved,  did  or  not 
show  want  of  probable  cause ;  but  no  such  request  seems  to  have 
been  made,  and  the  omission,  therefore,  to  give  more  specific 
instructions  furnishes  no  valid  cause  for  exception.     *     *     * 


Sec.  7.]  lister  v.  ferryman.  493 

LISTER  V.  FERRYMAN. 

L.  R.  4  English  &  Irish  Appeals,  521.     [1870.] 

This  was  an  appeal  against  a  judgment  of  the  Court  of  Ex- 
chequer Chamber,  which  affirmed  a  previous  judgment  of  the 
Court  of  Exchequer,  discharging  a  rule  obtained  on  behalf  of 
Mr.  Lister  (the  original  defendant)  for  setting  aside  a  verdict 
which  had  been  obtained  against  him. 

The  action  was  for  false  imprisonment,  and  the  defendant 
pleaded,  first,  not  guilty;  and,  secondly,  that  a  felony  (stealing  of 
a  rifle)  had  been  committed;  that  the  defendant  had  reasonable 
and  probable  cause  for  suspecting  the  plaintiff,  and  he  set  out, 
as  the  grounds  for  the  suspicion — that  the  plaintiff  had  been  in 
the  habit  of  coming  to  the  defendant's  premises — had  oppor- 
tunities of  seeing  where  the  rifle  was  kept — on  the  4th  of  March 
(1867)  took  it  up  and  said  he  should  like  to  have  it — it  was 
afterwards  missed,  and,  according  to  the  statement  of  one  Wil- 
liam Robinson,  on  the  faith  of  which  the  defendant  acted,  the 
plaintiff  had  .he  said  rifle  in  his  possession  for  a  short  time,  to-wit, 
four  days,  after  the  said  4th  of  March,  wherefore  defendant  gave 
him  into  custody,  etc.^ 

1  In    actions    for    false    imprison-  Winsmore  v.  Grenbank,  Willes,  577, 

ment   it    has    always    been    thought  in   a  different  field  of  tort,   it  was 

necessary  to  plead  the  specific  facts  said: 

relied  on  as  giving  probable  cause  "But,  to  be  sure,  it  must  be  an 
to  arrest  on  suspicion.  Steamship  Co.  unlawfully  procuring,  and  that 
V.  Williams,  69  Ga.  251.  At  one  brings  me  to  the  second  objection, 
time  the  pleading  was  apparently  It  is  not  necessary  to  set  forth  aU 
the  same  in  actions  for  malicious  the  facts  to  show  how  it  was  unlaw- 
proseeution.  In  Pain  v.  Rochester,  ful;  that  would  make  the  pleadings 
Cro.  Eliz.  871,  an  action  for  ma-  intolerable,  and  would  increase  the 
licious  prosecution,  Gawdy,  J.,  length  and  expense  unnecessarily, 
doubted  whether  such  a  plea  was  It  was  said  however  that  at  least 
proper  because  it  amounted  to  non  it  was  necessary  for  the  plaintiff  to 
culpabilis,  but  the  other  justices  add  'by  false  insinuations;'  but  it 
held,  "that  it  was  a  good  plea  per  is  not  material  whether  they  were 
doubt  del  lay  gents;  for  that  he  true  or  false;  if  the  insinuations 
confessed  the  procurement  of  the  in-  were  true  and  by  means  of  those 
dictment,  and  avoided  it  by  matter  the  defendant  persuaded  the  plain- 
in  law;  especially,  the  demurrer  be-  tiff's  wife  to  do  an  unlawful  act, 
ing  general,  he  shall  not  take  ad-  it  was  unlawful  in  the  defendant, 
vantage  thereof.  Wherefore  it  was  "In  answer  to  the  objection  that 
adjudged   for  the   defendant."     In  this  is  leaving  the  law  to  the  jury, 


494 


CONDUCT   OF   THE   TRIAL. 


[Chap.  IV. 


The  plainti^  took  issue  on  these  pleas ;  and  the  action  was  tried 
before  the  Lord  Chief  Baron  at  the  sittings  after  Trinity  term, 
1867.     *     *     * 

The  Lord  Chief  Baron  directed  the  jury  that  if  Lister  had 
received  the  information  from  Hinton  and  Robinson,  and  believed 
their  statements,  that  would  constitute  reasonable  and  probable 
cause,  but  if  Lister  had  acted  on  the  statement  of  Hinton  alone, 
and  had  not  seen  Robinson  before  he  gave  the  plaintiff  into 
custody,  then  there  would  be  no  reasonable  or  probable  cause, 
and  the  verdict  must  be  for  the  plaintiff.  The  jurors  found  that 
Lister  had  not  seen  Robinson  before  the  arrest,  but  believed  and 
acted  on  the  statement  of  Hinton,  and  they  gave  a  verdict  for 
the  plaintiff  with  £100  damages.     *     *     * 

Lord  CoLONSAY.  My  lords,  I  have  listened  to  this  case  with 
much  interest,  finding  myself  placed  in  what  is  to  me  the  some- 
what novel  position  of  having  to  deal  with  the  question  of  want 
of  reasonable  and  probable  cause  as  a  question  of  law  for  the 
court,  and  not  a  question  of  fact  for  the  jury.  I  have  frequently 
had  to  deal  with  cases  of  this  kind  in  the  other  end  of  the  island ; 
but  there  this  question  of  want  of  reasonable  and  probable  cause 
is  treated  as  an  inference  in  fact  to  be  deduced  by  the  jury  from 
the  whole  circumstances  of  the  ease,  in  like  manner  as  the  ques- 
tion of  malice  is  left  to  the  jury.  If  I  had  tried  the  case  there 
I  should  have  left  this  matter  to  the  jury ;  and  if  the  jury  had 
found  a  verdict  for  the  defendant,  I  should  have  approved  of 
that  verdict  for  reasons  I  am  about  to  explain.  If,  on  the  other 
hand,  the  jury  had  found  for  the  plaintiff,  still,  being  a  matter 
so  much  within  the  province  of  the  jury,  and  as  it  could  not  be 
said  that  they  had  gone  decidedly  wrong  and  contrary  to  evi- 
dence, I  should  have  held  that  it  was  not  a  case  for  the  court  to 
interfere.    But  in  England  it  is  settled  law  that  this  is  a  matter 


it  must  be  left  to  them  in  a  variety 
of  instances  where  the  issue  is  com- 
plicated, as,  hurglariter,  felonice, 
proditorie,  devisavit  vel  non,  de- 
misit  vel  non.  But  the  judge  pre- 
sides at  the  trial  for  the  very  pur- 
pose of  explaining  the  law  to  the 
jury,  and  not  to  sum  up  the  evidence 
to  them." 

For  the  difference  in  the  scope  of 
the  general  issue  in  actions  for  false 


imprisonment,  and  in  malicious 
prosecution,  see  Panjiris  v.  Hart- 
man,  196  Mo.  539. 

In  Panton  v.  Williams,  2  Q.  B. 
169,  the  court  calls  attention  to  the 
change  in  pleading  which  has  taken 
place  in  actions  for  malicious  prose- 
cution. Weaver  v.  Ward,  Hobart, 
134,  indicates  that  the  question  of 
negligence  was  dealt  with  in  much 
the  same  way  at  that  time   (1616). 


Sec.  7/ 


LISTER   V.    FERRYMAN. 


495 


for  the  court  to  deal  with.  The  court  deals  with  it  as  an  inference 
to  be  drawn  by  the  court  from  the  facts,  but  whether  an  inference 
of  law  or  an  inference  of  fact  does  not,  I  think,  appear  from  the 
reports.  I  do  not  see  clearly  whether  it  is  called  an  inference  of 
law  merely  because  it  is  left  to  the  court,  or  whether  it  is  left 
to  the  court  because  it  is  really  an  inference  of  law.2  But, 
undoubtedly,  it  appears  to  be  settled  law  in  this  country  that 
want  of  reasonable  and  probable  cause  is  matter  for  the  court. 
This  appears,  not  only  from  the  latest  case  that  has  been  alluded 
to,  Panton  v.  Williams  (2  Q.  B.  169),  but  was  very  authorita- 
tively laid  down  in  the  earlier  case  of  Johnstone  v.  Sutton  (1  T. 
R.  545),  in  which  the  opinions  of  Lord  Mansfield  and  Lord 
Loughborough  were  adduced  in  support  of  the  proposition  that 
such  was  the  law  of  England.     Probably  it  became  so  from 


2  Terry,  Anglo-American  Law, 
§66:  "A  difficulty  in  distinguish- 
ing between  proi)Ositions  or  ques- 
tions of  law  and  of  fact  occurs  in 
two  classes  of  cases;  and  first,  in 
what  are  con  actly  called  mixed 
propositions  or  questions.  Such  a 
proposition  arises  when  two  or  more 
distinct  and  separate  propositions 
of  different  characters  are  combined 
in  one  expression,  and  yet  each  one 
is  capable  of  being  detected  by 
analysis  and  separately  stated.  The 
mixture  is  caused  entirely  by  ab- 
breviation; it  is  a  mere  matter  of 
the  use  of  language.  For  example, 
the  proposition  that  A  and  B  are 
partners  includes  in  a  condensed 
form  the  statement  of  fact  that 
they  have  done  certain  acts,  such  as 
making  a  written  agreement  in  cer- 
tain terms,  and  the  statement  of 
law  that  the  legal  effect  of  those 
acts  is  to  put  them  into  the  condi- 
tion   of    being    partners." 

§  69 :  "  When  a  mixed  question 
arises  there  is  no  theoretical  diffi- 
culty about  the  disposition  of  it. 
The  questions  of  law  are  to  be  de- 
cided by  the  court  and  the  questions 
of   fact  by   the   triers   of   fact.     Tn 


jury  trials  the  court  must  tell  the 
jury  what  the  law  is  on  each  of  the 
states  of  fact  which  appear  prob- 
able on  the  evidence,  and  the  jury, 
having  found  which  of  these  possi- 
ble states  of  fact  is  the  true  one, 
nnist  apply  the  rule  of  law  given 
them  by  the  court,  and  so,  by  a 
conclusive  legal  inference,  decide 
ui^on  their  verdict.  If  it  is  quite 
plain  on  the  evidence  that  there  is 
only  one  state  of  facts  that  a  right- 
minded  jury  can  find  to  be  true, 
then  if  they  bring  in  a  contrary 
verdict  the  court  will  presimie  that 
they  have  misapplied  the  law  and 
will  set  such  a  verdict  aside  as  often 
as  it  is  given.  The  jury  will  not  be 
allowed  to  take  the  law  into  their 
own  hands,  and  by  a  general  verdict, 
at  least  in  civil  eases,  decide  the 
whole  of  a  mixed  question  of  fact 
and    law. ' ' 

§74:  ''It  will  be  noticed  that 
all  questions  of  curial  fact  have 
one  common  characteristic;  they  are 
questions  which,  so  far  as  their  own 
nature  goes,  might  be  questions  of 
law.  Some  questions  are  essentially 
incapable  of  being  answered  by  rule, 
for    example,    whether    A    promised 


496 


CONDUCT   OF    THE   TRIAL. 


[Chap.  IV. 


anxiety  to  protect  parties  from  being  oppressed  or  harassed  in 
consequence  of  having  caused  arrests  or  prosecutions  in  the  fair 
pursuit  of  their  legitimate  interests,  or  as  a  matter  of  duty,  in  a 
country  where  parties  injured  have  not  the  aid  of  a  public 
prosecutor  to  do  these  things  for  them. 

Finding  that  I  had  to  deal  with  this  as  a  matter  of  inference 
in  law,  I  was  desirous  to  ascertain  what  were  the  rules  or  prin- 
ciples of  law  by  which  the  court  ought  to  be  guided  in  drawing 
that  inference.  I  did  not  find  that  there  were  any.  Neither 
in  the  very  able  argument  we  heard  from  the  bar,  nor  in  the 
judgments  set  out  in  these  papers,  nor  in  the  cases  that  have  been 
referred  to,  are  any  such  rules  or  principles  enunciated.  I  think 
it  is  laid  down  by  the  learned  Lord  Chief  Baron  that  it  is  a 

to  pay  B  one  hundred  dollars  or 
whether  A's  pigs  got  into  B's  gar- 
den and  how  much  damage  they 
did  there.  But  the  impossibility 
above  insisted  upon  of  deciding  all 
questions  of  construction,  reason- 
ableness, admissibility  of  evidence 
and  other  matters  of  curial  fact  by 
rule  is  of  a  different  sort,  consisting 
merely  in  the  practical  impossibility 
of  foreseeing  all  the  material  facts. 
If  the  precise  words  in  which  A 
would  thereafter  make  his  wlU  could 
be  laid  before  the  Legislature,  it 
would  be  perfectly  possible  for 
them  to  determine  beforehand  by 
a  law  how  such  words  should  be 
construed.  So  they  could  say  as 
well  as  a  jury  how  fast  it  would 
be  reasonable  to  drive  a  horse  in 
the  street  if  the  same  facts  were 
known  to  them  before  the  event  as 
to  the  jury  afterwards,  and  could 
embody  their  opinion  in  a  law  ap- 
plicable to  the  case.  And  the  same 
may  be  said  of  all  other  questions 
of  curial  fact.  They  are  all  to  be 
settled  by  the  application  of  reason 
and  judgment  to  certain  facts.  If 
the  Legislature  could  get  at  the 
facts  they  might  prefer  to  exercise 
this  reason  and  judgment  themselves 
directly;    but    since    the    facts    are 


not  accessible  to  them  they  are 
compelled  to  leave  it  to  the  judges 
who  have  the  means  of  knowing  the 
facts. ' ' 

§  76 :  "  What  are  called  mixed 
questions  of  fact  and  law  are  often 
in  reality  mixed  questions  of  ordi- 
nary and  curial  fact.  Thus  it  is 
often  said  in  regard  to  negligence 
or  probable  cause,  that  the  facts  as 
they  existed  must  be  found  by  the 
jury,  and  that  then  whether  they 
amount  to  negligence  or  probable 
cause  is  a  question  of  law,  when  the 
latter  question  is  really  one  of 
curial   fact. ' ' 

Holmes,  Law  in  Science,  12  Har- 
vard  Law   Eeview,   443 : 

"In  some  regions  of  conduct  of 
a  special  sort  we  have  to  be  in- 
formed of  facts  which  we  do  not 
know  before  we  can  draw  our  lines 
intelligently,  and  so,  as  we  get  near 
the  dividing  point,  we  call  in  the 
jury.  From  saying  that  we  wUl 
leave  a  question  to  the  jury  to  say- 
ing that  it  is  a  question  of  fact  is 
but  a  step,  and  the  resiUt  is  that  at 
this  day  it  has  come  to  be  a  wide- 
spread doctrine  that  negligence  not 
only  is  a  question  for  the  jury  but 
is  a  question  of  fact.  I  have  heard 
it   urged    with   great   vehemence   by 


Sec.  7.] 


LISTER   V.    FERRYMAN. 


497 


mere  question  of  opinion,  depending  entirely  on  the  view  which 
the  judge  may  happen  to  take  of  the  circumstances  of  each 
particular  case.  And  upon  a  careful  consideration  of  the  de- 
cisions, it  seems  to  me  impossible  to  deduce  any  fixed  and  definite 
principle  to  guide  and  assist  the  judge  in  any  case  that  may  come 
before  him.  Chief  Justice  Tindal's  rule  seems  almost  the  only 
one  that  can  be  resorted  to,  namely,  that  there  must  have  existed 
a  state  of  circumstances  upon  which  a  reasonable  and  discreet 
person  would  have  acted.  Now  in  the  system  to  which  I  have 
already  alluded  it  is  thought  that  twelve  reasonable  and  discreet 
men  (as  jurors  are  supposed  to  be)  can  judge  of  that  matter  for 
themselves,  and  that  lawyers  are  not  the  only  class  of  persons 
competent  to  determine  whether  the  information  was  such  as  a 


counsel,  and  calmly  maintained  by 
professors  that,  in  addition  to  their 
wrongs  to  labor,  courts  were  en- 
croaching upon  the  province  of  the 
jury  when  they  directed  a  verdict 
in  a  negligence  case,  even  in  the 
unobtrusive  form  of  a  ruling  that 
there  was  no  evidence  of  neglect. 

"I  venture  to  think,  on  the  other 
hand,  now,  as  I  thought  twenty 
years  ago,  before  I  went  upon  the 
bench,  that  every  time  that  a  judge 
declines  to  rule  whether  certain  con- 
duct is  negligent  or  not  he  avows 
his  inability  to  state  the  law,  and 
that  the  meaning  of  leaving  nice 
questions  to  the  jury  is  that  while 
if  a  question  of  law  is  pretty  clear 
we  can  decide  it,  as  it  is  our  duty 
to  do,  if  it  is  difficult  it  can  be  de- 
cided better  by  twelve  men  taken  at 
random    from    the    street.     *     *     * 

"I  do  not  wish  to  repeat  argu- 
ments which  I  published  long  ago, 
and  which  have  been  more  or  less 
quoted  in  leading  text-books.  I  only 
wish  to  insist  that  false  reasons  and 
false  analogies  shall  not  be  relied 
upon  for  daily  practice.  It  is  so 
easy  to  accept  the  phrase  'there  is 
no  evidence  of  negligence,'  and 
thence  to  infer,  as  the  English 
House  of  Lords  has  inferred,  as  Pro- 
n.  T.  p.— 32 


fessor  Thayer  infers  in  his  admir- 
able Preliminary  Treatise  on  Evi- 
dence which  has  appeared  since  these 
words  were  written,  that  the  ques- 
tion is  the  same  in  kind  as  any  other 
question  whether  there  is  evidence 
of  a  fact. 

' '  When  we  rule  on  evidence  of 
negligence  we  are  ruling  on  a  stand- 
ard of  conduct,  a  standard  which 
we  hold  the  parties  bound  to  know 
beforehand,  and  which  in  theory  is 
always  the  same  upon  the  same  facts 
and  not  a  matter  dependent  upon 
the  whim  of  the  particular  jury  or 
the  eloquence  of  the  particular  ad- 
vocate. And  I  may  be  permitted  to 
observe  that,  referring  once  more 
to  history,  similar  questions  origi- 
nally were,  and  to  some  extent  still 
are,  dealt  with  as  questions  of  law. 
It  was  and  is  so  on  the  question  of 
probable  cause  in  malicious  prosecu- 
tion. It  was  so  on  the  question  of 
necessaries  for  an  infant.  It  was 
so  in  questions  of  what  is  reason- 
able, as — a  reasonable  fine,  con- 
venient time,  seasonable  time,  rea- 
sonable time,  reasonable  notice  of 
dishonor.  It  is  so  in  regard  to  the 
remoteness  of  damage  in  an  action 
of  contract.  Originally  in  malicious 
prosecution,  probable  cause,  instead 


498  CONDUCT   OF    THE   TRIAL.  [ChAP.  I\  . 

reasonable  and  discreet  man  would  have  acted  upon.  For  what 
is  it  that  a  judge  would  have  to  determine  ?  He  would  have  to 
determine  whether  the  circumstances  warranted  a  reasonable  and 
discreet  man  to  deal  with  the  matter,  that  is  to  say,  not  what 
impression  the  circumstances  would  have  made  upon  his  own 
mind,  he  being  a  lawyer,  but  what  impression  they  ought  to  have 
made  on  the  mind  of  another  person,  probably  not  a  lawyer.  If 
I  look  to  the  circumstances  of  this  case,  as  they  are  here  disclosed, 
and  put  the  question  to  myself,  I  come,  I  own,  to  the  conclusion, 
that  in  this  case  there  was  not  a  want  of  reasonable  and  probable 
cause,  and  consequently  that  the  direction  given  was  not,  accord- 
ing to  my  view,  a  sound  one.     *     *     * 

Judgment  reversed  and  ride  for  a  neiv  trial  made  absolute. 


INLAND,  ETC.,  COASTING  CO.  v.  TOLSON. 

139  V.  8.  551.     [1890.] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court :  ^ 
*     *     *     The  defendant  requested  the  court  to  give  this  in- 
struction :     "If  the  jury  shall  find  from  the  whole  evidence  that, 
at  the  time  the  defendant's  boat  was  landing  at  the  pier  Sham- 

of  being  negatived  in  the  declara-  began  to  leave  some  of  these  ques- 
tion, was  pleaded  by  the  defendant,  tions  to  the  jury.  Nevertheless, 
and  the  court  passed  upon  the  suf-  Mr.  Starkie,  a  man  of  intellect,  who 
ficiency  of  the  cause  alleged.  In  the  was  not  imposed  upon  by  phrases, 
famous  case  of  Weaver  v.  Ward  (1  very  nearly  saw  the  ground  upon 
Hobart,  134),  the  same  course  was  which  it  was  done,  and  puts  it  on 
suggested  as  proper  for  negligence.  the  purely  practical  distinction  that 
I  quote:  'As  if  the  defendant  had  when  the  circumstances  are  too  spe- 
said  that  the  plaintiff  ran  across  his  cial  and  complicated  for  a  general 
piece  when  it  was  discharging,  or'  rule  to  be  laid  down  the  jury  may 
had  set  forth  the  case  with  the  cir-  be  called  in.  But  it  is  obvious  that 
cumstances,  so  as  it  had  appeared  a  standard  of  conduct  does  not 
to  the  court  that  it  had  been  in-  cease  to  be  a  law  because  the  facts 
evitable,  and  that  the  defendant  had  to  which  that  standard  applies  are 
committed  no  negligence  to  give  not  likely  often  to  be  repeated. ' ' 
occasion  to  the  hurt.'  But  about  See  also  Thayer,  Preliminary 
the  middle  of  the  last  century,  when  Treatise  on  Evidence,  pp.  224  et  seq. 
the  rule  of  conduct  was  complicated  i  For  the  facts  in  this  case,  see 
with    practical     details,     the    court  post,  p.  548. 


Sec.  7.]         inland,  etc.,  coasting  co.  v.  tolson.  499 

rock,  the  plaintiff  negligently  or  carelessly  placed  his  left  foot 
between  the  piles  of  said  pier,  or  between  the  piles  and  the 
flooring  of  said  pier,  or  between  one  of  the  piles  in  front  of  said 
pier  and  the  flooring  thereof,  and  allowed  it  to  remain  there  while 
the  boat  was  departing  from  said  pier,  and  the  foot  so  placed 
was  injured  while  in  that  position,  then  the  plaintiff  is  not 
entitled  to  recover  in  this  action." 

The  defendant  also  requested  the  court  to  give  the  same  instruc- 
tion modified  by  omitting  the  words  "negligently  or  carelessly." 
The  court  declined  to  do  so,  and  gave  the  instruction  with 
those  words,  and  added  :  ' '  This  is  upon  the  hypothesis  that  you 
shall  first  find  the  facts  spoken  of  and  then  that  the  plaintiff 
negligently  or  carelessly  placed  his  foot  in  the  position  referred 
to.  It,  however,  still  leaves  with  you  the  question,  if  you  should 
find  he  did  place  his  foot  in  such  position,  whether  or  not  his 
act  in  doing  that  ivas  such  negligence  as  would  disentitle  him 
from  recovering.  There  is  a  principle  which  you  will  bear  in 
mind  in  regard  to  that.  It  is  this:  That  a  person  in  the 
position  of  the  plaintiff  is  to  keep  his  wits  about  him,  to  be  on 
the  alert  so  as  not  to  be  injured,  and  to  exercise  such  vigilance 
or  care  as  is  proportionate  to  the  hazard  of  the  duty  in  which 
he  is  engaged.  For  instance,  a  man  should  be  more  cautious  if 
he  is  running  a  dangerous  engine  than  if  he  is  sitting  as  you  are 
now,  in  a  position  of  safety  and  attending  to  his  usual  avocation. 
His  care  must  be  in  proportion  to  the  hazard  of  his  engagement. 
There  is  no  proof  here  to  show  that  this  was  a  dangerous  vocation 
— standing  there  attending  to  that  wharf — and  yet,  nevertheless, 
there  were  certain  hazards  accompanying  it,  just  as  there  are  in 
almost  all  positions." 

To  the  refusal  to  give  the  modified  instruction  requested,  and 
to  so  much  of  the  instructions  as  is  above  printed  in  italics,  the 
defendant  excepted. 

The  court  rightly  refused  to  omit  the  words  "negligently  or 
carelessly,"  as  requested,  because  to  do  so  would  be  to  assume 
that  the  plaintiff's  placing  his  foot  between  timbers  of  the  wharf 
and  keeping  it  there  while  the  steamboat  was  leaving  was  neces- 
sarily negligence,  as  matter  of  law.  The  court  truly  said  there 
was  no  proof  in  the  case  that  "standing  there,  attending  to  that 
wharf,  was  a  dangerous  vocation  ;"  and  properly  submitted  to  the 
jury  upon  the  whole  evidence  the  question  whether  the  plaintiff 
exercised  due  care  at  the  time  and  place  of  the  injury,  and  under 


500  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

the  circumstances  attending  it.  The  phrase,  "such  negligence 
as  would  disentitle  him  from  recovering,"  was  evidently  used  as 
synonymous  with  "such  negligence  as  contributed  to  the  injury." 


PROPER  V.  L.  S.  &  M.  S.  RY.  CO. 

136  Michigan,  352.      [1904.] 

Hooker,  J.  The  plaintiffs'  intestate  was  instantly  killed  by 
the  defendant's  passenger  train  at  a  street  crossing  in  the  village 
of  Jonesville.  At  the  time  he  was  driving  in  a  buggy,  and  his 
horse  was  struck  when  he  had  but  just  stepped  his  fore  feet  upon 
the  track.  The  action  is  case  for  negligence,  and  the  case  was 
left  to  the  jury,  who  found  a  verdict  for  the  defendant,  and 
plaintiffs  have  appealed.     *     *     * 

The  court  instructed  the  jury  as  follows: 
"If  you  find  that  Mr.  Proper  did  all  that  the  ordinarily 
careful  and  prudent  man  would  do  under  like  circumstances,  and 
with  his  knowledge  of  this  crossing,  and  of  the  trains  passing 
over  it,  in  approaching  this  crossing,  to  ascertain  if  any  train 
was  coming  on  this  track,  then  and  in  that  case  he  is  not  guilty 
of  contributory  negligence,  and,  so  far  as  that  question  is  con- 
cerned, plaintiffs  would  be  entitled  to  recover. 

"Contributory  negligence,  in  the  law,  may  be  defined  as  an 
act  by  the  injured  person  which  an  ordinarily  prudent  man  would 
not  have  done  under  the  same  circumstances,  or  the  omission  to 
do  that  which  an  ordinarily  careful  and  prudent  man  would  have 
done  under  the  circumstances,  and  which  act  or  acts  directly 
aid  in  causing  or  contributing  to  the  injury  received.  If  the 
mind  of  an  ordinary  prudent  man  would  be  impressed  with  the 
belief  of  danger,  under  the  circumstances  existing  and  surround- 
ing him  at  the  time  of  the  injury,  he  has  no  right  to  incur  the 
danger.  But,  on  the  other  hand,  if  the  mind  of  an  ordinarily 
prudent  man  would  not  be  impressed  with  the  belief  of  danger 
by  the  circumstances  surrounding  and  existing  at  the  time  of 
the  injury,  he  is  not  gnilty  of  contributory  negligence. 

"Therefore,  you  will  understand  that  it  is  a  very  important 
ciuestion  in  this  case  for  you  to  determine  whether  or  not  the 
deceased,  George  W.  Proper,  was  exercising  the  care  and  caution 


Sec.  7.]  proper  v.  l.  s.  &  m.  s.  ry.  co.  501 

which  he  should  have  exercised  as  he  approached  this  track, 
for,  unless  it  be  shown  that  he  gave  proper  attention — that  is, 
exercising  due  and  proper  care  in  the  question  of  whether  there 
was  an  approaching  train — then  he  cannot  recover;  and  if  the 
train  was  easily  to  be  seen,  had  he  stopped  and  looked  for  it,  or 
had  looked  attentively  enough  without  stopping,  and  the  ap- 
proaching train  would  have  been  seen  by  him  if  he  had  used  due 
care  and  caution  and  given  proper  attention,  then  he  was  guilty 
of  such  a  degree  of  negligence  as  would  prevent  a  recovery  in 
this  ease. 

"There  is  no  particular  act  necessary  to  be  found  on  which 
to  base  contributory  negligence.  It  may  exist  in  a  variety  of 
ways.  It  may  be  inferred  from  the  failure  of  the  plaintiff  or 
decedent  to  stop  his  horse  or  to  look  in  the  direction  of  the 
approaching  train,  or  a  failure  to  hear  the  approaching  train 
because  of  the  noise  of  the  buggy,  or  any  other  noise,  if  you  find 
there  was  any,  or  by  being  occupied  in  conversation  with  his 
companion ;  and  various  other  things  which  may  occur  may  be 
considered  as  contributory  negligence.  Anything  in  the  way  of 
inattention  to' the  approaching  train,  which,  in  the  mind  of  the 
jury,  contributed  to  the  injury  of  the  deceased,  and  the  injury 
would  not  have  occurred  had  it  not  been  for  such  inattention, 
is  contributory  negligence.  The  attention  which  is  required  of 
Mr.  Proper  is  the  same  attention  and  observation  that  is  used 
and  exercised  by  an  ordinarily  careful  and  prudent  man  under 
the  same  circumstances.     *     *     * 

"You  are  also  instructed  that  the  plaintiffs  are  not  entitled 
to  recover  in  this  case  simply  because  there  was  an  accident  which 
resulted  in  the  death  of  ]\Ir.  Proper,  for  whom  the  plaintiffs  claim 
to  act  as  administrators.  The  fact  that  Mr.  Proper  was  killed 
at  this  crossing  is  of  itself  no  evidence  whatever  of  any  negligence 
on  the  part  of  the  defendant,  or  of  any  liability  on  its  part  to 
respond  in  damages.  While  it  is  true  that,  simply  because  an 
accident  had  occurred,  negligence  is  not  to  be  presumed,  still,  in 
determining  the  question  of  negligence,  the  fact  that  an  accident 
has  occurred  may  be  and  should  be  taken  into  consideration, 
in  connection  with  all  the  other  facts  and  circumstances  in  the 
case,  for  the  purpose  of  determining  whether  in  fact  there  was 
negligence. 

"And  if  you  find  from  the  evidence  that  when  Sir.  Proper 
and  his  companion,  ]\Ir.  Wisner,  had  reached  a  point  in  the  high- 


502  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

way  Avhicli  was  somewhere  in  the  neighborhood  of  fifty  feet  or 
six  or  seven  rods  from  the  track,  as  estimated  by  various  wit- 
nesses, he  stopped  his  horse  and  looked  and  listened  for  the 
train,  then  started  up  again,  and,  as  he  started,  Mr.  Wisner 
looked  out  of  the  glass  at  the  back  of  the  buggy,  where  he  could 
only  see  a  few  rods  of  the  track,  and  the  parties  then  passed 
onto  the  track,  without  any  further  looking  in  the  direction  of 
the  approaching  train,  or  any  further  attempt  to  find  whether 
there  was  an  approaching  train,  then  such  acts  constituted  con- 
tributory negligence,  and  plaintiffs  could  not  recover. ' '  ^ 

Error  is  assigned  on  the  last  paragraph  of  the  above.  The 
plaintiffs  claimed  that  the  view  of  the  track  was  obscured  by 
buildings  and  trees,  and  that  it  was  a  difficult  and  dangerous 
crossing.  We  think  that  the  judge  was  right  in  holding  that, 
under  the  admitted  circumstances,  it  would  be  negligent  to 
assume  that  it  was  safe  to  proceed  without  any  further  effort 
to  ascertain  than  was  made  at  the  time  of  stopping.  Vreeland  v. 
Railroad  Co.,  109  Mich.  585  (67  N.  W.  905)  ;  Shufelt  v.  Railroad 
Co.,  96  Mich.  327  (55  N.  W.  1013)  ;  Braudy  v.  Railway  Co.,  107 
Mich.  100  (64  N.  W.  1056)  ;  Osborn  v.  Railway  Co.,  115  Mich. 
102  (72  N.  W.  1114)  ;  Britton  v.  Railroad  Co.,  122  Mich.  359 
(81  N.  W.  253)  ;  Tucker  v.  Railway  Co.,  122  Mich.  149  (80  N.  W. 
984),  and  cases  cited.     *     *     * 

Judgment  affirmed. 


PENNSYLVANIA  CO.  v.  FRANA. 

112  Illinois,  398.     [1884.] 

This  was  an  action  brought  by  Albert  Frana  against  the  Penn- 
sylvania Company  to  recover  for  a  personal  injury  received  by 
the  plaintiff  while  attempting  to  cross  the  railroad  track  of  the 
defendant  with  a  wagon  and  team,  attributing  the  accident  to 
the  alleged  negligence  of  the  defendant's  servants  in  the  man- 
agement of  its  train.  A  judgment  in  favor  of  the  plaintiff  in 
the  trial  court  was  affirmed  in  the  Appellate  Court,  and  the 
defendant  brings  the  cause  to  this  court  on  his  further  appeal. 

Mr.  Justice  Craig  delivered  the  opinion  of  the  court : 

1  See  also  Osborn  v.  Ey.,  115  Mich. 
102;    ElUott  V.  Ey.   150  U.  S.  245. 


Sec.  7.]  huguenin  v.  eatley.  503 

*  *  #  rpj^g  court  refused  defendant's  instruction  No.  1, 
which  was  as  follows : 

''The  jury  are  instructed  that  it  is  the  duty  of  a  person,  be- 
fore attempting  to  cross  a  railway  track,  to  stop,  if  necessary, 
and  look  and  listen  for  the  approach  of  trains,  before  entering 
upon  such  track;  and  if  the  jury  believe,  from  the  evidence, 
that  the  plaintiff  in  this  case  could  have  discovered  the  approach 
of  the  defendant's  train,  and  avoided  the  injury  in  question 
by  having  stopped  his  mule  before  driving  upon  the  track,  and 
looking  and  listening  for  the  approach  of  said  train,  then  he 
can  not  recover  in  this  case,  unless  the  jury  shall  believe,  from 
the  evidence,  that  the  agents  or  servants  of  the  defendants  were 
guilty  of  gross  negligence  in  the  operation  of  said  train. ' ' 

And  this  decision  is  relied  upon  as  error.  It  is  no  doubt  true 
that  it  is  the  duty  of  a  person  about  to  cross  a  railroad  track, 
to  approach  cautiously,  and  to  endeavor  to  ascertain  if  there 
is  present  danger  in  crossing;  and  where  the  railroad  track  and 
crossing  are  so  situated  that  the  approach  of  a  train  can  not  be 
seen,  it  may  be  the  duty  of  a  person  about  to  cross,  to  stop  and 
look,  to  ascertain  if  a  train  is  coming;  but  it  is  always  a  question 
of  fact  for  the  jury  to  determine,  from  the  evidence,  whether 
the  person  injured  has  exercised  proper  care  and  caution  in 
crossing  a  railroad  track,  and  not  a  question  of  law.  It  was  the 
province  of  the  jury  to  determine  whether  the  plaintiff  was 
guilty  of  negligence,  and  not  for  the  court  to  tell  the  jury  that 
certain  facts  constituted  negligence.  The  instruction,  as  drawn, 
took  the  question  of  fact  from  the  jury,  and  hence  was  erroneous, 
and  for  this  reason  the  court  did  not  err  in  refusing  it.     *     *     * 


HUGUENIN*  V.  RAYLEY. 

6  Taunton,  186.  .  [1815.] 

This  was  an  action  upon  a  policy  of  insurance  subscribed  by 
the  Albion  Insurance  Company  upon  the  life  of  Elizabeth 
Swayne.  Upon  the  trial  of  the  cause  at  the  Sarum  spring  assizes 
1815  before  Dampier,  J.,  one  defense  was,  that  there  had  been  a 
fraud  in  effecting  the  policy  by  the  suppression  of  a  fact  which 


y 


504  CONDUCT    OP   THE   TRIAL.  [ChAP.    IV. 

the  contract  required  the  assured  to  disclose.  It  appeared  that 
E.  Swayne,  who  had  been  many  years  resident  in  a  house  of  her 
owu  in  the  parish  of  Fisherton  Anger,  but  was,  in  December, 
1813,  a  prisoner  for  debt  in  the  county  gaol  in  Fisherton  Anger, 
then  employed  blather  to  effect  an  insurance  on  her  life  with  the 
defendants ;  one  condition  of  the  insurance  was,  that  a  declara- 
tion should  be  made  of  the  state  of  the  health  of  the  life  insured, 
and  ]\Iather,  reciting  that  he  had  proposed  on  the  behalf  of 
Elizabeth  Swayne  of  Fisherton  Anger  an  insurance  on  her  life, 
which  had  been  accepted  on  the  declaration  then  following,  de- 
clared that  E.  Swayne  did  not  exceed  the  age  of  66  years,  and 
that  she  was  then  resident  as  above ;  it  was  stipulated  that  the 
policy  should  be  valid,  only  if  the  statement  were  free  from  all 
misrepresentation  or  reservation.  For  the  purpose  of  ascertain- 
ing the  state  of  her  health,  Mather,  by  the  direction  of  the 
defendants,  called  in  a  physician,  who  found  the  subject  in  the 
gaol,  which  is  in  a  situation  perfectly  healthy,  confined  in  a 
large  airy  room,  well  calculated  to  preserve  the  health  of  its 
inhabitants.  She  was  apparently  about  60  years  of  age,  a  fresh- 
looking,  healthy,  hale  woman,  making  allowance  for  her  confine- 
ment; for  confinement  makes  some  difference  in  the  state  of 
health.  He  certified  that  she  was  in  good  health,  and  he  would 
have  noticed  on  his  certificate  the  fact  of  her  being  in  jail,  had 
he  not  been  led  by  the  circumstance  of  I\Iather's  speaking  of  the 
defendants  by  the  term  ' '  our  office, ' '  to  suppose  he  was  an  agent 
of  the  defendants,  and  that  all  which  he  knew  Avould  be  com- 
municated, for  the  witness  thought  it  a  fact  material  to  the  terms 
of  the  contract  to  be  communicated.  Upon  this  evidence, 
Dampier,  J.,  thought  that  Mather  had  by  contrivance  prevented 
the  physician  from  stating  a  fact  to  the  defendants,  which  he 
thought  material  to  the  contract,  and  he  therefore  stopped  the 
plaintiff's  case,  and  without  hearing  the  defendant's  case  directed 
a  nonsuit.     *     *     * 

On  this  day  the  court  relieved  Best  from  supporting  his  rule. 
They  observed  that  they  had  examined  the  documents,  and  there 
was  nothing  express  in  the  terms  of  the  policy  which  required  the 
imprisonment  to  be  stated,  nor  was  there  an  omission  of  the 
statement  of  any  matter  which  the  office  called  for ;  nevertheless, 
if  the  imprisonment  were  a  material  fact,  the  keeping  it  back 
would  be  fatal ;  Irat  it  ought  to  have  been  submitted  to  the  jury, 


J 


Sec.  7.] 


CASWELL   V.    HUNTON. 


505 


whether  the  omission  of  the  faet  relied  on  was  or  was  not  a 
material  omission, ^  therefore  there  must  be  a  new  trial. 

Rule  absolute. 


CASWELL  V.  HUNTON. 


87  Maine,  277.     [1895.] 

This  was  an  action  for  false  and  fraudulent  representations  in 
the  sale  of  personal  property.     Verdict  for  the  defendant. 

The  declaration  alleged  that  the  defendant,  in  order  to  induce 
the  plaintiff  to  buy  of  him  twenty-five  shares  in  the  capital  stock 
of  a  corporation  known  as  the  "National  Carving  Company," 
and  pay  him  therefor  the  sum  of  five  hundred  dollars,  "falsely 
and  fraudulently  represented  to  the  plaintiff  ' '  that  said  National 
Carving  Company  was  just  starting  into  business,  and  needed  a 
little  more  money  to  get  the  business  well  started ;  that  the  com- 
pany then  and  there  had  large  orders  to  fill,  and  that  he  (the 
defendant)  was  then  selling  treasury  stock  to  raise  money  to  do 


1  See  also  Bufe  v.  Turner,  6 
Taunton,  338,  where  the  materiality 
of  matters  not  disclosed  was  left  to 
the  jury. 

Marston,  J.,  in  Hall  v.  Johnson, 
41  Mich.  286:  "When  the  court 
came  to  charge  the  jury — to  give 
them  instructions  for  their  guidance 
when  they  would  retire  to  deliberate 
— nothing  was  said  as  to  the  ma- 
teriality of  the  representations,  if 
any  were  made  and  found  to  be  un- 
true. Irrespective  of  their  material- 
ity, the  jury  were  instructed  that  if 
false  representations  were  made 
upon  which  Mrs.  Young  relied,  and 
which  induced  her  to  part  with  the 
note,  plaintiffs  could  not  recover. 
We  are  of  opinion  that  even  in  this 
jiart  of  the  charge  the  court  must 
have  had  in  mind  material  false 
representations,  as  she  would  not  be 
likely  to  have  relied  upon  immaterial 


representations  or  parted  with  the 
note  upon  the  strength  thereof. 
This  view  is  most  favorable  to  the 
plaintiff  in  error,  and  yet  will  not 
help  him.  False  representations,  no 
matter  how  acted  upon,  will  not  be 
sufiicient  to  set  aside  an  agreement 
otherwise  valid  unless  they  were  ma- 
terial. Immaterial  representations, 
whether  true  or  false,  cannot  be 
made  the  basis  of  relief,  even  al- 
though coupled  with  the  assertion 
that  they  were  relied  upon.  They 
may  constitute  a  moral  wrong,  but 
not  a  legal  one.  False  representa- 
tions may  be  made  of  such  a  char- 
acter that  no  person  of  ordinary  in- 
telligence could  be  misled  thereby, 
and  that  could  have  had  no  influence 
whatever  in  inducing  the  other  party 
to  enter  into  the  agreement.  What 
might  be  considered  sufficiently  ma- 
terial to  induce  one  person  to  act, 


506 


CONDUCT   OP   THE   TRIAL, 


[Chap.  IV. 


business  to  fill  said  orders;  that  the  stock  he  (the  defendant) 
was  then  selling  was  treasury  stock  of  said  corporation ;  that  one 
F.  W.  Parker,  one  Frank  R.  Conant,  one  J.  L.  H.  Cobb,  and  one 
C.  I.  Barker,  were  then  owners  of  similar  treasury  stock  pur- 
chased by  them  respectively  of  the  corporation,  at  the  same  price 
he  was  paying;  that  he  was  and  had  been  since  the  company 
came  to  Maine,  about  a  year  before,  the  agent  of  said  corporation 
to  sell  its  treasury  stock  for  the  purposes  aforesaid ;  and  that  as 
such  agent,  he  (the  defendant)  had  sold  to  one  P.  M.  Thurlow 
two  hundred  and  fifty  shares  of  like  treasury  stock  at  the  same 
price  he  was  to  pay. ' ' 

The  declaration  contained  all  other  necessary  and  material 
elements  to  state  in  legal  form  the  alleged  cause  of  action.  The 
plaintiff  contended,  and  introduced  evidence  tending  to  show 
that  the  defendant,  as  an  inducement  to  the  sale,  made  each  and 
all  the  representations  above  set  forth.  There  was  also  evidence 
tending  to  show  that  the  stock  in  question  was  sold  by  the 
defendant  to  the  plaintiff  for  the  sum  of  five  hundred  dollars; 
that  the  stock  so  sold  was  not  treasury  stock,  but  the  defendant's 


might  have  but  little  or  no  influence 
upon  another,  so  that  no  definite 
rule  can  be  laid  down.  In  each  case 
the  court  or  jury  must  be  satisfied 
that  the  representations  if  made 
were  untrue,  and  as  applied  to  the 
transaction,  were  material — of  that 
character  that  a  person  of  ordinary 
intelligence  and  possessing  ordinary 
business  qualifications  would  be 
likely  to  rely  thereon  and  be  misled 
thereby. ' ' 

Devens,  J.,  in  Penn  Mutual  Life 
Ins.  Co.  V.  Crane,  134  Mass.  56: 
"The  plaintiff  contends,  on  the  au- 
thority of  Lindenau  v.  Desborough, 
8  B.  &  C.  586,  and  Huguenin  v.  Eay- 
ley,  6  Taunt.  186,  that  the  question 
whether  the  fraud  was  material  or 
otherwise  was  a  question  of  fact  for 
the  jury.  This  is  a  misapplication 
of  these  and  kindred  cases  in  the  law 
of  insurance,  where  it  has  been  held 
that  whether  facts  concealed  or  mis- 


represented increased  the  risk  as- 
sumed by  the  insurer  was  to  be 
determined  by  the  jury.  In  such 
eases,  it  is  always  determined  by  the 
court,  upon  consideration  of  the 
contract,  what  is  the  character  of 
the  concealment  or  misrepresenta- 
tion of  facts  which  will  invalidate 
the  contract,  and  for  the  jury  only 
to  ascertain  whether,  within  the 
definition  thus  given,  there  has  been 
a  material  concealment  or  misrepre- 
sentation of  them.  In  the  case  at 
bar,  it  was  for  the  jury  to  decide 
whether  the  false  and  fraudulent 
statements  alleged  were  made,  and 
for  the  court  to  determine  their  ef- 
fect upon  the  contract.  Evidence 
was  therefore  properly  admitted  to 
prove  these  representations  to  have 
been  made  by  the  plaintiff's  agents, 
and  also  that  they  were  false  and 
fraudulent. ' ' 


Sec,  7.]  caswell  v.  hunton.  507 

own  stock;  that  the  defendant  at  the  time  of  the  sale,  and  for 
some  time  prior  thereto,  was  the  duly  authorized  agent  of  the 
corporation  to  sell  its  treasury  stock ;  that  neither  Parker,  Conant, 
Cobb  nor  Barker  were,  or  ever  had  been,  owners  of  similar 
treasury  stock  purchased  by  them  respectively  of  the  corpora- 
tion at  the  price  he  was  paying;  that  as  such  agent  (to  sell 
stock)  the  defendant  had  never  sold  P.  M.  Thurlow  two  hundred 
and  fifty  shares  of  like  treasury  stock  at  the  same  price  he  (the 
plaintiff)  was  to  pay;  and  that  the  defendant  had  the  option 
to  sell,  and  the  right  to  sell  the  plaintiff  treasury  stock  instead 
of  his  own  stock.     *     *     * 

The  plaintiff  requested  the  presiding  justice  to  instruct  the 
jury  that  the  alleged  false  representation  that,  "the  stock  he 
[the  defendant]  was  then  selling  to  the  plaintiff  was  treasury 
stock  of  said  corporation,"  was  a  material  one,  and  that  if  the 
jury  should  find  the  other  elements  of  the  action  present,  then 
they  must  "ind  the  defendant  guilty.  The  defendant's  counsel 
in  his  argument  to  the  jury  admitted  the  above  representation 
to  be  material. 

The  plaintiff,  in  like  manner,  requested  a  similar  instruction 
concerning  the  alleged  false  and  fraudulent  representation,  that 
"one  F.  W.  Parker,  one  Frank  R.  Conant,  one  J.  L.  H.  Cobb 
and  one  C.  I.  Barker  were  then  owners  of  similar  treasury  stock 
of  said  corporation,  purchased  by  them  respectively  of  the  cor- 
poration at  the  same  price  he  [the  plaintiff]  was  paying." 

The  plaintiff,  in  like  manner,  requested  a  similar  instruction 
concerning  the  alleged  false  and  fraudulent  representation,  "that 
as  the  agent  of  the  corporation  he  [the  defendant]  had  sold  to 
one  P.  M.  Thurlow  two  hundred  and  fifty  shares  of  like  treasury 
stock  at  the  same  price  he  was  to  pay." 

The  presiding  justice  declined  to  rule,  as  matter  of  law,  that 
any  one  of  the  foregoing  alleged  false  and  fraudulent  representa- 
tions were  material,  as  requested,  but  left  the  question  of  ma- 
teriality of  each  representation  to  the  jur}',  with  proper  instruc- 
tions as  to  what  constituted  materiality,  to  which  no  exceptions 
were  taken. 

Walton,  J.  The  question  is  whether  the  materiality  of  a 
false  representation,  relied  upon  to  support  an  action  for  deceit, 
is  a  question  of  law  for  the  court,  or  a  question  of  fact  for  the 
jury. 

We  think  it  is  a  question  of  law  for  the  court.     IVIost  of  the 


508  CONDUCT   OP   THE   TRIAL.  [ChaP.    IV. 

questions  iuvolved  iu  an  action  for  deceit  are  questions  of  fact 
for  the  jury.  Whether  the  defendant  made  the  alleged  false 
representation,  and  whether,  if  he  made  it,  he  knew  it  to  be 
false,  and  whether  the  plaintiff  was  ignorant  of  its  falsity,  and 
whether  he  relied  upon  it,  and  was  thereby  damaged,  are  un- 
doubtedly questions  of  fact  for  the  jury.  But,  assuming  all 
these  facts  to  be  proved,  the  materiality  of  the  representation 
is  a  question  of  law  for  the  court.  Penn.  Ins.  Co.  v.  Crane,  134 
Mass.  56.  Bigelow  on  Fraud,  Vol.  I,  p.  139,  and  cases  there 
cited. 

In  the  present  case,  the  presiding  justice  declined  to  instruct 
the  jury  as  to  whether  any  one  of  the  alleged  false  representa- 
tions was  or  was  not  material,  but  left  the  question  of  materiality 
to  the  jury.  We  think  this  was  erroneous.  We  think  it  was  the 
right  of  the  parties  to  have  the  jury  instructed  specifically  re- 
specting each  of  the  alleged  false  representations,  and  to  have 
them  told  whether  or  not,  if  all  the  other  elements  of  fraud  were 
proved,  it  was  legally  sufficient  to  maintain  the  action. 

The  action  is  for  alleged  false  representations  made  by  the 
defendant  while  selling  to  the  plaintiff  twenty-five  shares  of 
corporation  stock.  The  exceptions  state  that  there  was  evidence 
tending  to  show  that  the  defendant  represented  that  he  was 
selling  the  stock  as  agent  for  the  corporation,  and  at  the  same 
price  at  which  similar  stock  had  been  sold  to  other  parties.  We 
think  these  representations  were  clearly  material ;  that  the  plain- 
tiff had  a  right  to  know  with  whom  he  was  dealing,  and  whether 
the  money  which  he  was  paying  for  the  stock  was  going  into  the 
treasury  of  the  corporation  to  increase  its  working  capital,  or 
into  the  pocket  of  a  stranger,  where  it  would  have  no  such  effect. 
And  we  think  the  plaintiff  also  had  the  right  to  know  whether 
others  had  paid  into  the  treasury  of  the  corporation  for  their 
shares  the  same  amount  which  he  was  paying.  Not  because  it  was 
important  or  material  for  him  to  know  what  others  had  paid  for 
their  stock,  but  because  it  was  material  for  him  to  know  how 
much  the  corporation  had  received  for  its  stock;  for  the  value 
of  his  own  stock  would  depend  largely  upon  the  amount  of  paid- 
up  capital  possessed  hy  the  corporation.  Consequently,  the  jury 
should  have  been  instructed  that,  if  they  found  the  other  elements 
of  fraud  proved,  these  representations  were  material  and  legally 
sufficient  to  maintain  the  suit.  Coolidge  v.  Goddard,  77  Maine, 
578 ;  Hoxie  v.  Small,  86  Maine,  26. 


Sec.  7.]  warner  v.  benjamin.  509 

WARNER  V.  BENJAlVriN. 

89  Wisconsin,  290.     [1895.] 

This  is  an  action  to  recover  damages  for  fraudulently  inducing 
the  plaintiff  to  purchase  worthless  mining  stocks.  The  complaint 
is  set  out  at  length  in  75  Wis.  278,  when  this  case  was  here  on 
appeal  from  an  interlocutory  order.  The  answer  of  the  defend- 
ant Bates  was  a  general  denial.  The  answer  of  the  defendants 
Benjamin  admits  the  purchase  of  mining  stock  by  the  plaintiff 
of  the  firm  of  Moore,  Benjamin  &  Co. ;  denies  all  fraudulent  or 
untrue  statements,  or  that  plaintiff  relied  on  any  information 
given  her  by  defendants,  but  that  she  informed  herself  as  to  the 
facts;  alleges  that  the  stock,  when  sold,  was  worth  what  she  paid 
for  it,  and  afterwards  greatly  increased  in  value,  and  that  the 
plaintiff  had  many  opportunities  to  sell  her  stock  at  an  advance, 
but  refused  to  do  so. 

Upon  the  trial  the  jury  returned  a  special  verdict,  wherein 
they  found:  *  *  *  (6)  That  the  defendant  H.  S.  Benjamin 
represented  to  the  plaintiff,  at  the  time  she  purchased  her  .stock, 
that  each  of  said  stocks  was  a  good  investment  at  the  price  she 
paid;  that  it  was  impossible  for  her  to  lose  thereby;  that  the 
property  represented  by  the  stock  was  in  good  and  promising 
condition ;  that  the  mines  were  being  rapidly  developed ;  that  ore 
had  been  sold,  or  was  ready  to  be  sold,  from  some  of  them ;  and 
that  they,  or  some  of  them.  Avould  yield  dividends  in  the  near 
future.  (7)  That  the  plaintiff  relied  upon  such  representations 
and  was  induced  thereby  to  purchase  her  stock.  (8)  That  the 
defendant  Laura  D.  Benjamin  joined  in  and  assented  to  such 
representations.  (9)  That  the  defendant  F.  A.  Bates  repre- 
sented to  the  plaintiff  that  said  mines,  or  some  of  them,  were  in 
a  good  or  promising  condition  and  were  certain  to  pay  dividends 
in  the  near  future.  (10)  That  the  plaintiff  relied  upon  the  rep- 
resentations made  by  Bates  and  was  induced  thereby  to  purchase 
stock  or  to  retain  stock  after  she  had  purchased  it.  (11)  That  the 
parties  making  said  representations  did  not  honestly  believe  them 
to  be  true  when  they  made  them.  *  *  *  Upon  this  A'erdict 
judgment  was  rendered  for  the  plaintiff,  and  the  defendants, 
Benjamin  and  wife,  appealed,  as  did  also  the  defendant  F.  A. 
Bates. 

WiNSLOw,  J.     *     *     *     4.  The  representations  which  the  jury 


510  CONDUCT   OP   THE   TRIAL.  [ChAP.    IV. 

found  were  made  by  Benjamin  and  by  Bates  will  be  found  fully 
stated  in  the  statement  of  the  jury's  verdict  contained  in  the 
statement  of  the  case  herein.  There  are  certainly  some  parts  of 
these  representations  which  do  not  amount  to  false  representa- 
tions. An  actionable  false  representation  must  be  one  relating  to 
an  existing  fact  or  past  event.  A  mere  opinion,  prediction,  or 
promise  of  a  future  condition  of  things  is  not  a  representation 
upon  which  a  party  has  any  right  to  rely.  Sheldon  v.  Davidson, 
85  Wis.  188.  In  the  latter  class  of  promises  would  certainly  fall 
the  statements  that  it  was  impossible  for  the  plaintiff  to  lose  upon 
her  investment  and  that  the  mines  would  pay  dividends  in  the 
near  future.  These  alleged  statements,  therefore,  are  entirely 
immaterial.  It  may  be  that,  as  to  the  remaining  false  representa- 
tions, they  may  form  foundation  for  a  recovery,  although  they 
certainly  verge  very  closely  upon  expressions  of  opinion  or  mere 
prediction  as  to  the  future,  and  they  might  reasonably  be  under- 
stood as  such.  The  appellants  asked  that  the  question  whether 
they  were  so  made  and  understood  be  submitted  to  the  jury,  and 
we  think  such  a  question  should  have  been  submitted. 

We  have  touched  upon  the  main  questions  presented  by  the 
record,  and  do  not  deem  it  necessary  to  notice  many  minor  ques- 
tions which  are  raised  but  may  not  occur  upon  another  trial. 

By  the  court:  Judgment  reversed  upon  both  appeals,  and 
cause  remanded  for  new  trial. 


SHAUER  V.  ALTERTON. 

151  U.  8.  607.      [1893.] 

This  action  was  brought  by  the  plaintiff  in  error  in  one  of 
the  courts  of  the  Territory  of  Dakota  to  recover  damages  for  the 
alleged  unlawful  taking  by  the  defendant  Alterton  of  a  certain 
stock  of  merchandise  in  a  storehouse  that  had  been  occupied  by 
Louis  S.  Shauer,  in  the  city  of  Mitchell,  in  that  Territory.  The 
defendant  justified  the  taking  under  attachments  in  favor  of 
creditors  of  Louis  S.  Shauer,  which  came  to  his  hands  as  sheriff 
of  the  county.  There  was  a  verdict  in  favor  of  the  defendant, 
and  a  new  trial  having  been  denied,  judgment  was  entered  in  his 
favor.     That  judgment  was  affirmed  by  the  Supreme  Court  of 


Sec.  7.]  shauer  v.  alterton.  511 

the  Territory,  and  the  writ  of  error  in  this  case  was  directed  to 
the  Supreme  Court  of  the  State  of  South  Dakota,  as  the  successor 
of  the  Supreme  Court  of  the  Territory  of  Dakota,  by  virtue  of  the 
act  of  February  22,  1889,  Chap.  180,  §  22,  25  Stat.  676,  683. 

Mr.  Justice  Harlan.  *  *  *  Jn  view  of  these  statutory 
provisions,  and  of  the  facts  which  the  evidence  tended  to  estab- 
lish, two  principal  questions  were  considered  by  the  court  in  its 
charge  to  the  jury :  First,  whether  the  transfer  of  the  merchan- 
dise in  question  was  made  with  the  intent  to  delay  or  defraud 
the  creditors  of  Louis  S.  Shauer;  second,  whether  the  transfer 
to  his  brother  was  accompanied  by  such  immediate  delivery  of 
the  merchandise  and  followed  by  such  actual  and  continued 
change  of  possession  as  the  statute  required.     *     *     * 

4.  Having  disposed  of  the  question  as  to  the  intent  with  which 
the  sale  in  question  was  made,  the  court  referred  to  the  provision 
of  the  statute,  declaring  the  transfer  of  personal  property — the 
vendor  having  at  the  time  possession  or  control  thereof — to  be 
conclusively  fraudulent  and  void,  as  against  creditors,  unless 
such  transfer  is  accompanied  by  an  immediate  delivery,  and 
followed  by  an  actual  and  continued  change  of  possession.  The 
court  said  to  the  jury  that  the  statute  means,  as  declared  by  the 
Supreme  Court  of  the  Territory  in  Grady  v.  Baker,  3  Dakota, 
296,  299,  that  the  sale  shall  be  open  and  public,  that  the  world 
may  be  apprised  of  the  change  of  ownership  ;  and  that  the  change 
of  possession  must  be  actual  and  continued,  and  not  subject  to 
some  secret  trust  between  the  buyer  and  seller.  "Some  of  the 
eases,"  the  court  below  observed,  "say  that  the  change  must  be 
of  that  character  that  customers  and  those  accustomed  to  fre- 
quent the  premises  may  be  at  once  advised  of  the  change  of 
possession  by  the  changed  appearance  of  the  property  or  its 
change  of  custody.  And  this  is  true,  whatever  may  be  the  good 
intention  or  bona  fides  of  the  transaction;  even  the  law  will  not 
tolerate  such  transfers  as  against  creditors.  The  change  of 
possession  must  be  open  and  visible,  and  if  not,  as  against  credi- 
tors without  knowledge  of  the  transfer,  it  will  be  void,  though 
made  for  a  valuable  consideration  in  good  faith  and  without  any 
actual  intent  to  defraud.  In  such  case  the  law  conclusively  pre- 
sumes a  fraudulent  intent,  and  the  party  to  such  sale  will  not 
be  heard  to  prove  the  contrary." 

In  addition  to  what  appears  in  the  charge,  the  court,  at  the 


512  CONDUCT   OP   THE   TRIAL.  [ChAP.    IV. 

instance  of  the  defendant,  instructed  the  jury  that  a  change 
of  the  property  in  controversy  in  this  case  must  not  have  been 
merely  nominal  and  momentary,  but  real,  actual,  and  open,  such 
as  could  be  publicly  known ;  and  that  if  the  property  was  per- 
mitted to  remain  in  the  possession  of  Louis  S.  Shauer,  then  the 
transfer  was  fraudulent  in  law  as  to  his  creditors,  notwithstand- 
ing the  sale  may  have  been  made  to  his  brother  in  good  faith  and 
for  a  valuable  consideration. 

The  specific  objection  made  by  the  plaintiff  to  these  instruc- 
tions is  that  they  stated  an  arbitrary  rule,  namely,  that  the  change 
in  possession  must  be  accompanied  by  such  outward,  visible  signs 
as  would  apprise  the  world  of  the  change,  and  made  no  reference 
to  the  time  within  which  such  signs  should  be  given,  or  to  the 
nature  of  the  property  transferred  or  to  the  circumstances  attend- 
ing the  transaction.  The  court,  it  is  said,  should  have  qualified 
the  rule  as  indicated  in  the  instructions  asked  by  him.  We  can- 
not sustain  this  position.  The  instructions  asked  by  the  plain- 
tiff, on  this  point,  did  not  substantially  differ  from  those  given 
by  the  court,  except  they  were  more  elaborate  and  referred  more 
in  detail  to  the  facts.  The  court  told  the  jury  that  the  statute 
required  not  only  an  immediate  change  of  possession,  but  one  so 
open  that  the  public  would  be  apprised  of  it.  While  the  court 
was  at  liberty  to  recall  to  the  minds  of  jurors  all  the  facts  and 
circumstances  bearing  upon  this  issue,  we  cannot  say  that  it 
erred  in  not  doing  so,  or  that  it  erred  in  leaving  to  the  jury  to 
determine  whether,  under  all  the  evidence,  there  was  such  im- 
mediate delivery  and  such  actual  change  of  possession  of  the 
property  in  controversy  as  was  necessary,  under  the  statute  as 
explained,  to  make  the  transfer  valid  against  creditors. 

In  this  connection,  it  is  appropriate  to  say  that  the  inter- 
pretation placed  by  the  court  below  on  the  Dakota  statute,  relat- 
ing to  change  of  possessioji  accords  with  the  decisions  of  the 
Supreme  Court  of  California  in  respect  to  a  similar  statute.  In 
Stevens  v.  Irwin,  15  California,  503,  507,  it  was  said:  "A 
reasonable  construction  must  be  given  to  this  language,,  in 
analogy  to  the  doctrines  of  the  courts  holding  the  general  prin- 
ciples transcribed  into  the  statute.  The  delivery  must  be  made 
of  the  property ;  the  vendee  must  take  the  actual  possession ; 
that  possession  must  be  open  and  unequivocal,  carrying  with  it 
the  usual  marks  and  indications  of  ownership  by  the  vendee.  It 
must  be  such  as  to  give  evidence  to  the  world  of  the  claims  of 


J 


Sec.  7.]  pepy's  case.  513 

the  new  owner.  He  must,  in  other  words,  be  in  the  usual  relation 
to  the  property  which  owners  of  goods  occupy  to  their  property. 
This  possession — not  taken  to  be  surrendered  back  again — not 
formal,  but  substantial. ' '  See  also  Lay  v.  Neville,  25  California, 
545,  553 ;  Woods  v.  Bugby,  29  California,  466 ;  Parks  v.  Barney,' 
55  California,  239.  There  are  many  other  cases  to  the  same 
effect.     *     *     * 


(b)   Rules  governing  the  charge. 
PEPY'S  CASE. 

.5  Leonard,  80.     [1583.] 

Waste  was  brought  by  F.  and  his  wife  against  Pepy ;  and  de- 
clared, thai  the  said  Pepy  was  seized,  and  enfeoffed  certain 
persons  to  the  use  of  himself  for  life,  and  afterwards  to  the  use 
of  the  wife  of  the  plaintiff,  and  her  heirs.  The  defendant  pleaded, 
that  the  said  feoffment  was  to  the  use  of  himself  and  his  heirs  in 
fee,  etc.,  absque  hoc,  that  it  was  to  the  uses,  as  in  the  count ;  upon 
which  they  were  at  issue.  And  it  was  found  by  verdict,  that  the 
said  feoffment  was  to  the  uses  contained  in  the  count ;  but  further 
found,  that  the  estate  of  the  defendant  by  the  limitation  of  the 
use  was  privileged  with  the  impunity  of  waste;  scil.  without 
impeachment  of  waste.  It  was  moved,  if  upon  that  verdict,  the 
plaintiff  should  have  judgment.  Anderson  and  Rhodes,  Justices, 
conceived  that  he  should,  for  that  the  matter  in  issue  is  found 
for  the  plaintiff;  and  that  is,  the  feoffment  to  uses  contained 
in  the  count,  and  this  impunity  of  waste  is  a  foreign  matter 
not  within  the  charge  of  the  jury ;  and  therefore  the  finding  of 
the  same  is  but  matter  of  surplusage.  As  if  I  plead  a  feoffment  of 
J.  S.  to  which  the  other  pleads,  that  he  did  not  enfeoff,  and  the 
jury  find  a  conditional  feoffment,  the  court  shall  not  respect  the 
finding  of  the  condition,  for  it  was  not  in  issue,  and  no  advantage 
shall  be  ever  had  of  such  a  liberty  if  it  be  not  pleaded,  30  H.  8. 
Dyer  41.  In  dower,  the  tenant  pleaded,  ne  unq;  seisi  que  dower, 
etc.  The  tenant  pleaded,  that  before  the  coverture  of  the  de- 
mandant, one  A.  was  seized,  and  gave  the  land  whereof  dower 
is  demanded  to  the  husband  of  the  demandant  in  tail,  who  made 
a  feoffment ;  a  stranger  took  the  demandant  to  wife,  took  back 

H.  T.  p.— 3  3 


514  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

an  estate  in  fee,  and  died  seized,  having  issue  inheritable.  Now, 
although  upon  the  truth  of  the  matter  she  is  not  dowable  de  jure, 
yet  forasmuch  as  the  parties  were  at  issue  upon  a  point  certain, 
no  foreign  nor  strange  matter  not  in  question  betwixt  the  parties 
shall  be  respected  in  the  point  of  judgment ;  but  if  the  defendant 
had  pleaded  it  in  bar,  he  might  have  foreclosed  the  demandant 
of  her  dower.  See  38  Ass.  27,  47  E.  19.  In  a  praecipe  quod 
reddat  upon  the  default  of  the  tenant,  came  one  and  showed, 
how  that  the  tenant  who  made  default,  was  but  tenant  for  life 
of  the  lands  in  demand,  the  reversion  in  fee  to  himself,  and 
prayed  to  be  received.  The  demandant  counterpleaded  the 
resceit,  dicendo,  that  the  tenant  had  fee,  etc.,  upon  Avhich  issue 
was  taken ;  and  it  was  found  that  neither  the  tenant,  nor  he  who 
prayed  to  be  received,  had  anything  in  the  land.  And  in  that 
case,  the  court  did  not  regard  the  matter  which  was  superfluous 
in  the  verdict ;  for  they  were  at  issue  upon  a  point  certain ;  soil. 
whether  the  tenant  was  seised  in  fee.  For  it  is  confessed  of  the 
one  side,  and  of  the  other,  that  he  had  an  estate  for  life,  and  of 
that  matter  the  jury  was  not  charged,  and  they  are  not  to  inquire 
of  that ;  and  so  it  is  found  against  the  demandant,  by  which  the 
resceit  was  granted.  See  7  H.  6,  20.  The  parties  were  at  issue 
upon  a  dying  seised,  which  is  found  by  verdict,  but  the  jury 
find  further,  that  the  other  party  made  continual  claim.  The 
said  continual  claim  shall  not  be  respected  in  point  of  judgment, 
because  it  was  not  pleaded  in  avoidance  of  the  resceit,  etc. 
Windham,  Justice,  to  the  contrary,  because  it  appeareth  to  us 
upon  the  verdict  that  the  plaintiff  hath  not  cause  of  action,  and 
therefore  he  shall  not  have  judgment.  As  in  detinue,  the  plain- 
tiff declares  upon  a  baylment  by  his  own  hands ;  the  defendant 
pleads,  ne  detinue  pas,  the  jury  find  the  detinue  but  upon  bayl- 
ment by  another  hand.  In  that  case,  notwithstanding  that  the 
detinue  be  found,  yet  the  plaintiff  shall  not  have  judgment.  But 
Anderson,  Rhodes  and  Periam  conceived,  that  in  the  principal 
case  judgment  should  be  given  for  the  plaintiff;  for  in  no  case 
the  party  shall  have  advantage  of  that  liberty  of  impunity  of 
waste,  if  he  doth  not  plead  it ;  and  the  jurors  are  not  to  meddle 
Math  any  matter  which  is  not  in  issue ;  ^  and  if  they  do,  it  is 

1  Anon.    19    H.    VI.    47,    pi.    101.  day,  year  and  place   (nota  that  the 

A    writ    of    trespass    was    brought  day    was    other    than    the    plaintiff 

against    one    for    an    assault    made.  counted)    the  plaintiff  made  an  as- 

Portington:  We  say  that  on  such  a  sault  on  the  defendant,  and  the  in- 


J 


Sec.  7.]  morrow  v.  st.  paul  city  ry.  co.  515 

but  matter  of  surplusage,  and  to  no  purpose;  and  afterwards, 
judgment  was  given  for  the  plaintiff.  See  the  Number  Roll, 
Pasch.  25  Eliz.  Rot.  602. 


MORROW  V.  ST.  PAUL  CITY  RY.  CO. 

65  Minnesota,  382.      [1896.] 

Start,  C.  J.  The  plaintiff's  intestate,  George  Morrow,  was  on 
March  22,  1895,  a  conductor  in  the  employ  of  the  defendant,  on 
one  of  its  electric  car  lines,  known  as  the  "Selby  Avenue  Ex- 
tension, ' '  which  connected  with  its  cable  line  at  Milton  Street,  in 
the  city  of  St.  Paul.  While  he  was  engaged,  on  the  day  named, 
in  transferring  his  car  from  one  track  to  another  on  the  electric 
line,  a  cable  train  collided  with  the  electric  ear,  whereby  he 
received  injuries  from  which  he  died  two  days  thereafter.  This 
action  was  brought  by  his  administratrix  to  recover  damages  for 
his  death,  on  the  ground  that  it  was  caused  by  the  negligence  of 
the  defendant.  The  specific  and  only  acts  of  negligence  on  the 
part  of  the  defendant  charged  in  the  complaint  are  that  the 
gripman  operating  the  cable  train  was  incompetent  and  unable  to 
manage  the  same,  to  the  knowledge  of  the  defendant ;  that  the 
cable,  machiner}'-  and  appliances  furnished  by  the  defendant  to 
propel,  control  and  operate  the  cable  train  were  insufficient  and 
defective.  These  allegations  were  put  in  issue  by  the  answer. 
There  was  a  verdict  for  the  plaintifiP  in  the  sum  of  $3,500,  and 
the  defendant  moved  the  court  for  a  new  trial,  on  the  ground. 

jury  he  received  was  of  son  assault  no  traverse  to  say  that  I  did  not 
demesne,  sans  ceo  that  he  is  guilty  beat  him  on  the  day  he  alleged, 
of  any  assault  made  before  the  said  And  if  I  say  not  guilty  generally, 
day  or  afterwards.  Eeady,  etc.  He  and  the  inquest  comes  and  says  that 
pleaded  this  by  leave  of  court.  I  beat  him  on  another  day  accord- 
And  Newton,  J.,  said  that  this  was  ing  to  the  truth,  and  that  it  was 
the  reason,  because  if  a  man  makes  done  on  the  assault  of  the  plaintiff, 
an  assault  on  me  on  Sunday,  and  I  this  verdict  amounts  to  guilty:  and 
beat  him  in  my  defense,  and  for  this  by  this  manner  of  pleading  as  above 
trespass  he  brings  an  action  and  I  shall  be  helped.  Wherefore  it  is 
counts  that  the  trespass  was  done  better  to  plead  thus,  and  not  gener- 
on  the  Saturday  before  or  the  Mon-  ally  not  guilty  because  of  the  mis- 
day  after,   or   any   other   day,   it   is  chief  of  the  verdict. 


516  CONDUCT   OF   THE   TRIAL.  [ChAP,    IV. 

among  others,  that  the  verdict  was  not  justified  by  the  evidence, 
and  for  errors  of  law  occurring  on  the  trial,  and  excepted  to  by 
the  defendant.  The  motion  was  granted  in  general  terms,  with- 
out specifying  the  particular  grounds  therefor ;  but,  in  his  mem- 
orandum attached  to  the  order  granting  the  motion,  the  trial 
judge  stated  that  the  defendant  was  entitled  to  a  new  trial,  by 
reason  of  error  on  the  trial  in  permitting  the  plaintiff  to  cross- 
examine  the  gripman  of  the  cable  train,  who  was  called  as  a 
witness  by  the  defendant,  as  to  his  competency. 

If  this  alleged  error  was  the  only  one  in  the  case,  we  should 
find  difficulty  in  affirming  the  order,  for  the  cross-examination 
of  the  gripman  did  not  exceed  the  reasonable  limits  which  the 
trial  court,  in  its  discretion,  had  a  right  to  permit.  But  the 
reason  assigned  in  the  memorandum  for  making  the  order  is  no 
part  of  the  order,  and  it  will  not  be  reversed  if  other  prejudicial 
errors  of  law  occurred  on  the  trial,  and  were  excepted  to  by  the 
defendant. 

The  court  instructed  the  jury  to  the  effect  that  the  defendant 
was  bound  to  use  due  care  and  caution  to  provide  a  safe  place 
for  its  servants  in  which  to  perform  the  duties  assigned  to  them, 
and  that  for  any  violation  of  this  rule  the  defendant  was  liable 
for  damages.  The  exception  to  this  instruction,  and  the  re- 
sponse of  the  court  thereto,  are  in  these  words : 

"Mr.  Thygeson:  I  would  like  at  this  time  to  take  an  excep- 
tion to  that  part  of  the  court's  remarks,  just  made,  that  the 
defendant  is  liable  in  this  case  because  of  failure  to  furnish  a 
safe  place  in  which  the  servant  should  be  employed,  on  the 
ground  that  there  is  no  such  issue  in  this  case.  The  Court :  Well, 
it  is  for  the  jury  to  say,  under  all  the  circumstances,  whether 
the  regulation  that  a  man  shall  get  down  on  the  ground,  and 
stand  back  of  his  car,  at  the  time  when  he  puts  the  trolley  on, 
was  a  regulation  or  instruction  which  furnished  him  a  safe  place 
or  not,  in  view  of  the  close  proximity  of  the  switch  to  the  other 
track,  and  all  the  surrounding  circumstances  in  the  case." 

It  is  to  be  noted  that  the  attention  of  the  court  was  by  the 
exception  specifically  called  to  the  fact  that  there  was  no  issue 
in  the  case  as  to  whether  the  place  assigned  to  the  deceased  in 
which  to  work  was  unsafe  or  not.  If  it  was  so  in  fact,  by 
reason  of  the  conditions  suggested  by  the  court  to  the  jury, 
they  may  have  been  obvious  to  the  deceased,  and  he  assumed 
the  risks.     We  have  already  stated  the  only  acts  of  negligence 


J 


Sec.  7.] 


CENTRAL   R.    R.    CO.    V.    ATTAWAY. 


517 


on  the  part  of  the  defendant  charged  in  the  complaint,  and  the 
charge  that  the  defendant  was  negligent  in  not  furnishing  a  safe 
place  for  the  deceased  in  which  to  perform  his  work  was  neither 
alleged  nor  litigated,  by  consent  or  otherwise.  The  giving  of 
this  instruction  under  these  circumstances,  when  the  defendant 
had  no  opportunity  to  meet  the  charge,  was  clearly  prejudicial 
error,  for  which  the  defendant  was  entitled,  as  a  matter  of 
right,  to  a  new  trial.^ 

Order  affirmed. 


CENTRAL  R.  R.  CO.  v.  ATTAWAY. 

90  Georgia,  656.     [1892.] 

Simmons,  Justice,  after  reciting  the  above  facts,  said : 
1.  Several  grounds  of  the  motion  for  a  new  trial  complain  of 
instructions  to  the  jury  as  to  the  right  of  the  plaintiff  to  recover 


1  Accord :  Hackett  v.  Ey.,  235  111. 
116;  Indiana  Ey.  Co.  v.  Maurer,  160 
Ind.  25;  Kirkpatrick  v.  Ey.,  211 
Mo.  68;  Greenthal  v.  Lincoln,  67 
Conn,  372.  Per  curiam  in  Latour- 
ette  V.  Maldrum,  49  Ore.  397:  "It 
is  evident  from  the  averuients  of 
the  several  answers  that  the  de- 
fendants relied  on  the  original  writ- 
ten agreement  as  affording  a  de- 
fense to  the  action  and  not  on  any 
verbal  modification  thereof,  and  in 
such  case  the  question  to  be  consid- 
ered is  whether  the  court  erred  in 
charging  the  jury  as  to  a  fact  not 
in  issue,  though  no  exception  was 
taken  to  the  introduction  of  testi- 
mony tending  to  establish  such  fact. 
In  Coos  Bay  E.  Co.  v.  Siglin,  26  Or. 
387  (38  Pac.  192),  it  was  held  to 
be  reversible  error  to  charge  as  to 
an  issue  not  made  by  the  pleadings, 
though  evidence  as  to  the  contro- 
verted fact  was  received  without  ob- 
jection. It  has  been  repeatedly  hold 
that  an  instruction  outside  the  issues 
is  erroneous,  and,  if  excepted  to,  the 
giving  thereof  in  such  case  is   suf- 


ficient ground  for  reversal  on  ap- 
peal: Hughes  V.  McCuUough,  39 
Or.  372  (65  Pac.  85);  Carson  v. 
Lauer,  40  Or.  269  (65  Pac.  1060); 
First  Nat.  Bank  v.  McDonald,  42 
Or.  257  (70  Pac.  901).  The  sev- 
eral answers  failed  to  allege  that 
the  contract  of  June  30,  1897,  had 
lieen  modified  in  any  manner,  and 
for  that  reason  the  instruction  ob- 
jected  to    is   erroneous. ' ' 

Anderson,  J.,  in  Ey.  v.  McWhor- 
ter,  156  Ala.  269:  "Charge  19,  re- 
quested by  the  defendant,  was  too 
broad  as  to  contributoiy  negligence, 
it  is  only  contributory  negligence 
that  is  pleaded  that  can  defeat  a 
recovery  when  proven.  Southern 
Ey.  V.  Shelton,  136  Ala.  191,  34 
South.  194.  The  charge  in  question 
is  predicated  on  any  contributory 
negligence,  whether  pleaded  or  not. ' ' 

But  in  some  jurisdictions  a  verdict 
may  be  directed  on  an  unpleaded 
defense  clearly  shown  by  the  plain- 
tiff's  evidence.  Hudson  v.  Ey.,  101 
Mo.  13. 


518  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

for  negligence  in  the  manner  of  handling  the  tools,  as  well  as 
negligence  in  having  used  them  in  a  defective  condition.     These 
instructions  were  alleged  to  be  erroneous  because  it  was  not 
claimed  in  the  plaintiff's  declaration  that  his  injury  was  caused 
by  the  improper  handling  of  the  tools.     The  declaration,  how- 
ever, charged  negligence  "in  using  the  defective  tools,"  and  the 
plaintiff's  evidence  tended  to  show  that  the  negligence  consisted 
in  the  manner  of  using  them,  as  well  as  the  fact  of  having  used 
them  in  their  defective   condition ;  and  this  evidence  was  not 
objected  to  at  the  trial.    If  the  allegations  in  the  declaration  did 
not  cover  negligence  in  the  former  respect  as  well  as  in  the 
latter,  the  defendant  ought  to  have  objected  or  moved  to  rule 
it  out.i     Had  he  done  so,  it  would  have  been  allowable  for  the 
plaintiff  to  amend  so  as  to  make  the  declaration  more  specific. 
But  as  the  evidence  on  this  point  was  allowed  to  come  into  the 
case  and  remain  in  it  without  objection,  the  court  was  author- 
ized to  charge  the  jury  upon  the  case  as  developed  by  the  proof. 
Where  a  party  permits  evidence  to  go  to  the  jury  without  oljjec- 
tion,  upon  a  declaration  that  is  ambiguous,  and  the  jury  find  on 
such  evidence,  the  party  is  not  entitled  to  a  new  trial  on  the 
ground  that  the  evidence  does  not  correspond  with  the  declara- 
tion, if  the  declaration  could  by  amendment  have  been  made  to 
clearly   cover  the   evidence;   and   certainly,   if  the   jury   could 
consider  the  evidence,  the  court  was  authorized  to  charge  upon 
it  as  a  part  of  the  case.  S.,  F.  &  W.  Railway  Co.  v.  Barber,  71  Ga. 
644  (2),  648;  Howard  v.  Barrett,  52  Ga.  15;  Ga.  R.  Co.  v.  Law- 
rence, 74  Ga.  534;  Ocean  S.  Co.  v.  Williams,  69  Ga.  251   (4a), 
261 ;  Haiman  v.  Moses,  39  Ga.  708 ;  Pomeroy,  Rem.  &  Remed. 
Rights.  §  554,  et  seq.    And  see  Central  R.  Co.  v.  Hubbard,  86 
Ga.  627,  and  cases  cited.     *     *     * 

1  Hadley,    J.,    in    Schwaniger    v.  amendment    could    have    been    made 

McNeeley,    44    Wash.    447:    "When  as  of  course  at  the  trial.     Gallamore 

evidence   is   received  without   objec-  v.   Olympia,  34  Wash.  379,   75  Pac. 

tion  upon  any  particular  ground  not  978;  Iverson  v.  McDonnell,  36  Wash, 

covered  by  the  complaint,  the  court  73,   78   Pac.   202." 
may  assume  that  the  complaint  is  as  An    amendment,    however,    might 

broad  as  the  evidence  when  charging  entitle  the  adverse  party,  to  a   con- 

the  jury,  and  the  complaint  will  be  tinuanee,  see  ante,  p.  219,  Corell  v. 

deemed    amended    to    conform   with  Marks, 
the  evidence  and  charge,   since  the 


Sec.  7.]  flanders  v.  cottrell.  519 

FLANDERS  v.  COTTRELL. 
36  Wisconsin,  564.     [1875.]      ^ 

Lyon,  J.  1.  A  question  raised  on  the  complaint  will  first  be 
disposed  of.  It  is  averred  therein  that  Mr.  Noonan  sold  the  press 
to  Cameron,  Amberg  &  Co.  for  the  defendants  and  at  their 
request,  and  no  other  or  different  cause  of  action  is  stated.  The 
averment  is  entirely  unproved.  The  question  litigated  on  the 
trial  was,  not  whether  Noonan  sold  the  press,  but  whether  he 
was  instrumental  in  enabling  the  defendants  to  sell  it.  This 
question  was  sharply  litigated ;  much  testimony  in  respect  to  it 
was  given  by  both  parties ;  and  it  was  submitted  to  the  jury  as 
the  controlling  question  of  fact  in  the  case.  All  this  was  done 
without  objection  by  either  party.  Indeed  the  question  was 
thus  submitted  at  the  request  of  the  defendants. 

Under  these  circumstances,  it  is  too  well  settled  to  admit  of 
doubt  or  controversy,  that  the  pleadings  may  at  any  time  be 
amended  to  conform  with  the  issue  really  tried,  or  the  variance 
may  be  wholly  disregarded.^ 


COSTLY  V.  McGOWAN. 

174  Illinois,  76.      [1898.] 

Mr.  Justice  Wilkin.  *  *  *  Numerous  errors  are  assigned 
upon  the  record,  but  the  only  ground  of  reversal  insisted  upon  is, 
that  the  court  below  erred  in  giving  certain  instructions  to  the 
jury  on  behalf  of  the  defendants.  Those  objected  to  are  the  first, 
eighth  and  seventeenth  of  the  series  given  at  the  instance  of  the 
proponents.  The  objection  urged  against  them  is,  that  they 
limit  the  inquiry  before  the  jury  to  the  question  of  the  mental 
capacity  of  the  testator  to  make  the  will,  ignoring  entirely  the 
issue, — undue  influence.  The  first  instruction  tells  the  jury 
"the  f|uestion  to  be  passed  upon  by  the  jury  is  this:  Was  the 
mind  and  memory  of  the  deceased,  at  the  time  of  making  the 
alleged  will,  sufficiently  sound  to  enable  him  to  know  and  under- 

1  Accord :    Hiltz   v.   Ey.,    101    Mo. 
36. 


520  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

stand  the  business  in  which  he  was  engaged  at  the  time  he  exe- 
cuted the  will. ' '  The  eighth  instruction  states  what  is  necessary, 
under  the  law,  to  constitute  testamentary  capacit}',  and  says: 
"If  the  jury  believe,  from  the  evidence,  that  when  Samuel  B. 
McGowan  made  the  will  in  question  he  was  able  to  remember 
who  were  the  natural  objects  of  his  bounty,  recall  to  his  mind 
his  property  and  make  disposition  of  it  understandingly,  ac- 
cording to  some  plan  or  purpose  formed  in  his  mind,  he  had 
testamentary  capacity,  and  the  jury  will  find  that  the  will  in 
question  is  the  will  of  Samuel  B.  McGowan."  The  seventeenth 
states  that  the  law  presumes  testamenfary  capacity  until  the 
contrary  is  shown,  and  if  the  proof  only  makes  the  case  doubt- 
ful as  to  whether  the  testator  had  such  capacity,  "then  the  gen- 
eral presumption  in  favor  of  sanity  must  prevail,  and  the  jury 
will  find  that  the  will  offered  in  evidence  is  the  will  of  Samuel 
B.  McGowan." 

That  these  instructions,  tested  by  the  issue  made  by  the  bill 
and  answer  and  submitted  to  the  jury,  are  erroneous,  admits 
of  no  question.  Two  issues  were  thus  formed  and  made  up  to 
be  tried,  while  the  instructions, — especially  the  last  two, — in- 
form the  jury  that  if  they  find  one  of  those  issues  for  the  de- 
fendants they  should  return  a  verdict  that  the  paper  purporting 
to  be  the  will  of  Samuel  B.  McGowan  is  his  will.  Nothing  is 
better  settled  than  that  an  instruction  which  ignores  a  material 
issue  in  a  cause  which  is  submitted  to  a  jury  for  its  finding  is 
erroneous.  It  is  true  that  every  issue  made  by  the  pleadings 
is  not  necessarily  submitted  to  the  jury.  The  parties  may  always 
abandon  an  issue  made  by  the  pleadings,  on  the  trial;  and  in 
this  ease,  if  it  appear  that  the  complainants  below  offered  no 
evidence  to  support  the  allegation  of  undue  influence,  it  would 
not  have  been  error  for  the  court,  in  its  instructions  to  the  jury, 
to  ignore  that  issue.  The  plaintiffs  in  error  have  seen  proper 
to  bring  the  case  to  this  court  without  preserving  the  evidence 
in  the  record,  and  it  is  insisted  on  behalf  of  defendants  in  error 
that  it  is  therefore  impossible  for  us  to  determine  that  the  giving 
of  these  instructions  was  reversible  error.  It  is  stated  in  the  bill 
of  exceptions  that  "the  trial  of  this  cause  consumed  a  period  of 
about  nine  days,  where  the  evidence  was  contrary  and  conflicting, 
and  that  the  court  having  submitted  to  the  jury,  as  issues  of 
fact,  whether  or  not  the  testator,  at  the  time  of  the  execution  of 
the  will  in  question,  possessed  sufficient  testamentary  capacity 


Sec.  7.]  schroeder  v,  michel.  521 

to  execute  said  will;  second,  whether  or  not  said  will  was  the 
result  of  undue  and  improper  influence  on  the  part  of  any  of 
the  defendants  therein;  and  the  complainants,  to  maintain  the 
issues  on  their  part,  offered  evidence  tending  to  show  that  the 
testator,  at  the  time  of  the  execution  of  the  said  will,  was  not 
possessed  of  sufficient  testamentary  capacity  to  execute  a  valid 
will;  secondly,  evidence  tending  to  show  undue  and  improper 
influence  on  the  part  of  the  defendant.  Proponents  of  the  will 
offered  evidence  tending  to  show  that  the  testator  was  possessed 
of  sufficient  testamentary  capacity,  and  also  evidence  tending 
to  show  that  the  said  will  was  not  the  result  of  undue  and  im- 
proper influence,  whereupon,  at  the  close  of  the  evidence,  the 
court  gave  the  jury,  on  behalf  of  the  proponents  of  the  will,  the 
following  instructions. ' '  This  is  sufficient  to  bring  before  us  for 
review  the  assignment  of  error  upon  the  giving  or  refusing  in- 
structions. Illinois  Central  Railroad  Co.  v.  O'Keefe,  154  111. 
508. 


Judgment  reversed.^ 


SCHROEDER  v.  MICHEL. 

98  Missouri,  43.      [1888.] 

Per  Curiam.  *  *  *  The  first  point  made  is  that  the  first 
instruction  for  plaintiff,  above  quoted,  is  erroneous  because  it 
omits  from  view  the  defense  of  limitation.  It  is  undoubtedly  a 
better  and  more  logical  practice  for  every  instruction  assuming 
to  state  the  facts  necessary  to  a  verdict  for  plaintiff  to  refer  to 
such  affirmative  defenses  as  the  ease  may  present.  But  whether 
or  not  the  omission  to  do  so  constitutes  reversible  error  will 
greatly  depend  on  the  language  of  the  different  instructions  in 
each  particular  ease.  If  the  qualification  of  the  instruction  com- 
plained of  appears  elsewhere  in  a  form  fairly  bringing  it  to  the 
attention  of  the  jury  as  a  modification  of  the  other,  the  judg- 
ment will  not,  on  that  account,  be  reversed.     In  the  present  in- 

1  And    so    where    the    instruction  tion  which  excludes  a  defense,  Faust 

narrowed  the  issue  to  a  part  of  the  v.   Horsford,   119   la.    97;    Terry   v. 

negligent  acts   charged,   McDermott  Shively,    64   Ind.    106;    111.   Lumber 

V.  Ey.,  87  Mo.  285.     For  the  same  Co.  v.  Hanly,  214  111.  243;   Scanlon 

reason,  it  is  error  to  give  an  instruc-  v.  Guliek,  199  Mo.  449. 


522  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

stance,  the  instruction  number  one  for  plaintiff  says  nothing  of 
the  statute  of  limitations,  but  the  bearing  of  instruction  num- 
ber six  for  defendant  as  a  qualification  of  it  is  very  plain: 
"Even  if  the  jury  believe,  from  the  evidence,  that  defendant 
promised  to  marry  plaintiff,  yet,  if  you  further  believe  that  at 
a  period  of  time,"  etc.  This  language  could  leave  no  doubt  that 
if  the  facts  named  in  number  six  were  found,  the  plaintiff  could 
not  recover  even  if  the  facts  named  in  number  one  were  also 
believed  to  exist.     This  objection,  therefore,  is  not  sustained. 


IMHOFF  V.  C.  &  M.  RY.  CO, 

20  Wisconsin,  344.     [1866.] 

Appeal  from  the  Circuit  Court  for  Milwaukee  county. 

The  plaintiff  was  a  passenger  on  the  defendant's  road  from 
Chicago  to  Milwaukee ;  and  it  is  alleged  in  the  complaint  that 
while  getting  off  the  cars,  after  their  arrival  at  the  latter  place 
(which  was  about  one  o'clock  at  night),  she,  through  defendant's 
negligence,  was  thrown  down  by  the  motion  of  the  train,  which 
had  commenced  backing,  and  received  severe  personal  injuries; 
to  recover  damages  for  which  this  action  was  brought. 

The  answer  denies  these  allegations.  A  considerable  amount 
of  evidence  was  introduced  by  both  parties  as  to  the  length  of 
time  which  elapsed  after  the  arrival  of  the  train  before  it  com- 
menced backing,  and  as  to  whether  the  usual  signals  were  given. 
The  defendant's  evidence  tended  to  show  that  the  train  did  not 
commence  backing  until  at  least  twenty-five  minutes  after  its 
arrival.     *     *     * 

Downer,  J.  At  the  trial,  the  following  instructions  given 
to  the  jury  at  the  request  of  the  respondent's  counsel  were  ex- 
cepted to  by  the  appellant :  *  *  *  2.  If  the  jury  find  from 
the  evidence,  that  ordinary  and  reasonable  care  and  attention  to 
the  safety  of  the  passengers  on  the  train  arriving  in  Milwaukee 
at  one  o'clock  in  the  morning,  required  that,  before  backing  up 
the  train  and  putting  it  away,  the  company  should  see  to  it  by 
examination  of  the  passenger  ears,  that  the  passengers  were  all 
out,  and  that  this  was  not  done  on  the  night  when  the  plaintiff 
was  injured,  then  the  defendant  was  guilty  of  negligence ; 'and 


Sec.  7.]  imhoff  v.  c.  &  m.  ry.  co.  523 

if  the  injury  to  the  plaintiff  was  occasioned  by  backing  the  train 
without  such  examination  and  care,  the  defendant  is  liable, 
unless  the  jury  should  also  find  that  the  plaintiff  also  was  guilty 
of  negligence,  which  contributed  to  produce  the  injury." 

Each  of  these  instructions  assumes  that  at  the  time  of  the 
accident  the  contract  of  common  carrier  between  the  plaintiff 
and  defendant  was  in  force.  "Whether  it  was  or  not,  was  a  se- 
verely contested  piont.  It  is  error  for  the  court  to  assume  a 
fact  which  the  jury  ought  to  determine.^  It  is  true,  the  court 
afterwards,  when  asked  by  the  defendant's  counsel,  instructed 
the  jury,  "That  if  the  jury  believe  from  the  evidence  that  the 
train  had  arrived  at  the  end  of  the  route,  and  that  a  reasonable 
time  had  elapsed  for  the  plaintiff  to  get  out  of  the  cars,  after 
their  arrival,  before  the  injury  to  the  plaintiff  occurred,  then 
the  relation  of  common  carrier  between  the  parties  had  ceased, 
and  the  defendant  cannot  be  held  liable  for  the  injury  as  a  com- 
mon carrier  of  passengers."  The  giving  of  this  instruction  did 
not  cure  the  error  in  the  others.  Where  erroneous  instructions 
are  given  for  one  part.y,  the  error  is  not  corrected  by  giving  for 
the  other  party  instructions  explanatory  inconsistent  with,  or 
contradictory  to,  those  first  given.  The  erroneous  instructions 
should  be  withdrawn  from  the  jury.  Jones  v.  Talbot,  4  Mo.  279 ; 
Hickman  v.  Griffin,  6  Mo.  37 ;  Clay  v.  Miller,  3  Mon.  146.  There 
may  be  an  exception  to  this  rule,  where  it  is  clear  to  the  court 
that  the  erroneous  instruction  did  not  mislead  the  jury. 

1  In   Ey   V.    Shelton,    66   111.    424,  tion    is    that    it    assumes    the    facts 

the   following   instruction   was   held  upon  which  it  is  based.     As  to  the 

to  involve  the  assumption  that  the  rapidly  revolving  flywheel  and  crank 

plaintiff   was   thrown   off   while   the  disc,   it   is   only   necessary   to    state 

train  was  in  motion,  etc.,  viz.:  that   defendant's    own   witness,    Dr. 

' '  The  jury  are  instructed,  that  if  Norberg,  testified  to  those  facts  as 
they  believe,  from  the  evidence,  that  well  as  plaintiff 's  witnesses,  and  the 
the  plaintiff  had  not  paid  or  offered  defense  in  part  was  predicated  on 
to  pay  his  fare  from  Elkart  to  South  the  obvious  danger  which  they  pre- 
Bend,  then  the  defendant  would  not  sented  to  plaintiff  and  his  reckless- 
be  warranted  in  throwing  the  plain-  ness  in  placing  his  hand  in  the  ma- 
tiff  from  the  train,  in  a  way  to  en-  chinery  while  thus  revolving.  These 
danger  his  life  or  limb,  or  throw  were  conceded  conditions  by  all  par- 
him  off  when  the  train  was  in  mo-  ties  to  the  suit,  and  it  was  not  error 
tion."  to    speak    of    them    as    established. 

Gannt,  J.,  in  Henderson  v.  Kan^  There   was   no   assumption   that  the 

sas   City,    177    Mo.    477:    "The   de-  floor  was  dangerous." 
fendant's   criticism   of   this  instruc- 


524  CONDUCT    OP   THE   TRIAL.  [ChaP.    FV. 

But  in  this  case,  the  erroneous  instructions  being  given,  the 
jury  might  have  considered  the  first,  and  if  they  found  those 
facts  on  the  finding  of  which  they  were  told  by  that  instruction 
the  plaintiff  was  entitled  to  recover,  they  might  well  have  con- 
cluded they  were  not  bound  to  examine  further,  except  as  to 
the  amount  of  damages.  The  same  may  be  said  of  the  second 
instruction  given ;  for  each  professes  to  give  all  the  facts  neces- 
sary for  the  jury  to  find  to  entitle  the  plaintiff  to  recover.  And 
all  such  facts  should  be  stated  in  every  hypothetical  instruction, 
which  disposes  of  the  entire  case  in  favor  of  one  party  or  the 
other.  For  the  error  in  such  instruction  is  not  ordinarily  cor- 
rected by  giving  other  instructions  based  upon  the  omitted  facts. 
According  to  the  instructions  in  this  case,  if  the  jury  had  found 
the  facts  set  out  in  either  of  the  plaintiff's  instructions  they 
must  find  for  him ;  and  if  they  found  the  facts  stated  in  the  in- 
struction given  at  the  request  of  the  defendant,  they  must  find 
for  him.  They  might  have  found  from  the  evidence  the  facts 
mentioned  in  all  three  of  the  instructions.  It  is  obvious  the  two 
first  instructions  tended  to  mislead  the  jury,  and  to  divert  their 
attention  from  some  of  the  facts  on  which  their  verdict  ought  to 
rest.  And  for  this  reason  the  judgment  of  the  Circuit  Court 
must  be  reversed.     *     *     * 


WOMACK  V.  INTERNATIONAL  &c.  R.  R.  CO. 

100  Texas,  453.     [1907.] 

Brown,  Associate  Justice.  *  *  *  At  the  request  of  the 
defendant,  the  court  below  gave  to  the  jurj^  the  following  special 
charge:  "If  from  the  evidence  you  believe  that  at  and  imme- 
diately prior  to  the  fire  in  the  hay  barn,  the  switch  engine,  which 
it  is  claimed  set  fire  to  said  barn,  was  equipped  with  spark- 
arresting  apparatus  of  the  best  and  most  approved  kind,  and 
such  as  is  generally  used  by  well  regulated  railroads,  and  further 
believe  from  the  evidence  that  the  engine  was  properly  and  care- 
fully handled  by  the  men  in  charge  thereof,  then  you  will  return 
a  verdict  for  the  defendant,  even  if  you  should  further  believe 
from  the  evidence  that  the  fire  was  started  by  a  spark  of  fire 
emitted  from  or  thrown  by  the  engine." 

And  in  its  general  charge,  the  court  instructed  the  jury  as 
follows : 


Sec.  7.]      womack  v.  international,  etc.,  r.  r.  co.  525 

"II.  If  you  believe  from  a  preponderance  of  the  evidence 
that  the  fire  which  destroyed  the  property  described  in  plaintiffs ' 
petition,  was  directly  and  proximately  caused  and  occasioned  by 
sparks  emitted  from  one  of  defendant's  switch  engines,  as  alleged 
in  plaintiffs'  petition,  you  will  return  a  verdict  for  plaintiffs, 
unless  you  further  believe  from  the  evidence  that  defendant 
exercised  ordinary  care  on  said  occasion,  to  have  said  engine  pro- 
vided with  one  of  the  best  and  most  approved  kind  of  appliances 
in  use  by  railway  companies  for  preventing  the  escape  of  fire 
from  railway  engines ;  that  defendant  exercised  ordinary  care  to 
see  that  said  appliances,  if  there  were  such,  were  in  reasonably 
good  repair  and  condition  on  said  occasion  to  prevent  the  escape 
of  fire  from  said  engine,  and  that  said  engine  was  on  said 
occasion  handled  with  ordinary  care  and  skill  to  prevent  the 
escape  of  fire,  or  unless  you  find  in  defendant 's  favor  on  the  issue 
of  contributory  negligence,  hereinafter  submitted  to  you. ' ' 

Plaintiffs  in  error  have  assigned  error  upon  the  action  of  the 
court  below  in  giving  to  the  jury  said  requested  special  charge, 
upon  the  ground  that  it  withdrew  from  the  consideration  of  the 
jury  the  question  of  the  defective  condition  of  the  spark-arrest- 
ing apparatus  on  defendant  in  error's  engine,  and  that  it  was  in 
conflict  with  the  paragraph  of  the  court's  general  charge  above 
quoted.     *     *     * 

In  conformity  with  the  decision  of  this  court  in  Scott  v.  Texas 
&  Pacific  Railway  Company,  93  Texas,  625,  the  trial  court  sub- 
mitted the  plaintiffs'  case  in  its  main  charge,  in  substance,  stat- 
ing to  the  jury  that  if  the  fire  which  destroyed  plaintiffs'  prop- 
erty was  proximately  caused  by  sparks  from  the  defendant's 
engine,  they  should  find  for  the  plaintiffs,  unless  the  evidence 
showed  that  the  railway  compan^^  had  exercised  ordinary  care 
and  diligence  in  the  particulars  specified  in  that  charge.  The 
defendant  by  the  special  charge  sought  to  have  its  view  of  the 
case  submitted  and  practically  presented  the  same  propositions 
as  those  contained  in  the  general  charge,  except  that  in  the  spe- 
cial charge  it  is  not  definitely  stated  that  to  defeat  plaintiffs' 
case  the  evidence  must  show  that  the  defendant  had  exercised 
ordinary  care  to  keep  its  engine  and  spark-arrester  in  reasonably 
safe  condition.  The  special  charge  when  given  became  a  part  of 
the  charge  of  the  court  to  the  jury  and  in  construing  the  special 
charge  we  must  look  to  the  main  charge  upon  the  same  points 
just  as  if  both  paragraphs  had  been  embraced  in  the  court's 


526  CONDUCT   OF   THE   TRIAL.  [ChaP.    IV. 

original  charge.  There  is  no  conflict  between  the  two  paragraphs. 
In  considering  the  two  charges  together  the  jury  would  not  un- 
derstand that  the  court  intended  to  tell  them  in  one  paragraph 
that  the  railway  company  would  be  liable  if  the  evidence  did  not 
show  that  it  had  used  ordinary  care  to  keep  its  spark-arrester  in 
reasonably  safe  condition,  and  in  another  paragraph  the  court 
intended  to  tell  them  that  the  plaintiffs  could  not  recover, 
although  the  evidence  did  not  show  that  the  railway  company 
used  ordinary  care  to  keep  its  spark-arrester  in  safe  condition. 
To  reach  such^a  conclusion  would  require  more  ingenuity  than 
the  juror  brings  to  the  impartial  discharge  of  his  duties.  The 
giving  of  the  special  charge  did  not  have  the  effect  to  withdraw 
from  the  jury  any  part  of  the  main  charge,  and  the  whole  charge 
being  before  them,  they  would  not  disregard  an  affirmative  re- 
quirement because  it  was  omitted  from  the  negative  phase  of  the 
instruction,  but  would  naturally  construe  both  charges  to  mean 
the  same, thing. 


HARRINGTON  v.  PRIEST. 

104  Wisco7isin,  362.      [1899.] 

The  plaintiff  brought  this  action  to  recover  for  dental  services 
rendered  to  the  defendant,  alleged  to  have  been  of  the  reasonable 
value  of  $250.  The  defendant  answered  that  such  services  were 
so  improperly,  unskillfully,  and  negligently  performed  as  to  be 
worthless,  and  in  his  counterclaim  alleged  that  by  reason  of  such 
negligent  and  unskillful  work  he  was  damaged  in  the  amount  of 
$1000.  The  jury  returned  a  verdict  for  the  plaintiff  for  $228.30. 
A  motion  for  a  new  trial  was  denied,  and  from  the  judgment 
entered  upon  the  verdict  the  defendant  appeals. 

Bardeen,  J.  The  complaint  alleges  that  the  plaintiff  per- 
formed certain  dental  services  for  the  defendant,  which  were 
reasonably  worth  $250.  The  answer  denies  that  such  services 
were  worth  that  amount,  and  alleges  that  they  were  so  negligently 
and  unskillfully  performed  as  to  be  entirely  worthless.  Here 
was  presented  a  plain  and  simple  issue.  The  burden  of  proving 
that  the  services  rendered  were  performed  with  reasonable  skill, 
and  were  worth  the  sum  mentioned,  was  upon  the  plaintiff. 
Upon  this  point  the  court  charged  the  jury  as  follows:    "The 


Jl 


Sec.  7.]  Harrington  v.  priest.  527 

burden  of  proof,  so  far  as  this  ease  is  concerned,  rests  upon  the 
plaintiff  to  establish  his  side  by  a  fair  preponderance  of  the  evi- 
dence, which  is  sometimes  called  the  down  weight  of  the  evi- 
dence. If  you  find  from  the  testimony,  as  I  say,  that  the  plain- 
tiff did  this  work  in  a  reasonably  careful  and  skillful  manner, — 
in  such  manner  as  dentists  of  ordinary  standing  or  good  stand- 
ing in  this  community  or  this  vicinity  would  have  done  it, — 
and  that  the  price  he  has  charged  is  a  reasonable  price,  then  you 
should  return  a  verdict  in  favor  of  the  plaintiff  for  the  full 
amount  claimed."  This  was  a  proper  charge  under  the  issues 
so  far  presented.  But  the  defendant  set  up  a  counterclaim  in 
which  he  alleged  that  he  had  been  damaged  in  the  sum  of  $1000 
by  reason  of  plaintiff's  unskillful  and  negligent  work.  The  de- 
fendant thus  assumed  an  aggressive  attitude,  and  presented  an 
affirmative  issue.  In  order  to  recover  upon  his  counterclaim, 
the  burden  was  clearly  upon  him  to  show  that  he  had  been  dam- 
aged by  reason  of  the  plaintiff's  negligent  and  unskilful  work. 
The  trial  court,  hoM^ever,  seems  to  have  failed  to  grasp  the  situa- 
tion. Immediately  following  the  charge  cpioted,  he  makes  the 
following  statement  to  the  jury :  "If,  on  the  other  hand,  you 
find  from  the  evidence,  and  there  the  burden  of  proof  rests  upon 
the  defendant  in  establishing  the  fact  that  the  work  was  improp- 
erly done,  it  is  necessary  for  the  defendant  to  satisfy  you  of 
that  by  a  fair  preponderance  of  the  evidence ;  as  I  say,  on  that 
branch  of  the  case  the  burden  of  proof  rests  upon  the  defendant. 
So  that  if  you  are  satisfied  from  the  evidence,  by  a  fair  prepon- 
derance of  the  evidence,  that  the  plaintiff  did  the  work  in  an 
unskilful  and  negligent  manner,  and  did  it  in  such  a  way  as  it 
would  not  have  been  done  by  a  dental  practitioner  in  good  stand- 
ing in  this  vicinity,  and  the  work  was  not  as  good  as  if  should 
have  been  under  that  rule,  then  it  will  be  your  duty  to  determine 
the  amount  of  difference  caused  by  such  unskilfulness  and  negli- 
gence or  want  of  care." 

This  must  have  left  the  jury  in  the  utmost  confusion.^     In  the 

1  Gray,  C.  J.,  in  Mooar  v.  Har-  ceptions.  The  defendant 's  intention 
vey,  325  Mass.  574:  "Although  a  was  a  fact  in  controversy  at  the 
judge  is  not  bound  to  receive  a  re-  trial,  and  was  in  law  a  material  ele- 
quest  for  instructions  after  he  has  ment  in  determining  whether  he  re- 
concluded  his  charge  to  the  jury,  sided  out  of  the  commonwealth, 
jet,  if  he  does  give  further  instruc-  within  the  meaning  of  the  statute  of 
tions,    they    are    a    subject    of    ex-  limitations.      Gen.   Sts.    c.    155,    §  9. 


528  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

one  place  he  tells  them,  in  effect,  that  the  burden  is  upon  the 
plaintiff  to  show  that  he  performed  the  services  sued  for  in  a 
reasonably  skilful  and  careful  manner,  and  that  they  were  reason- 
ably worth  the  sum  charged  therefor.  These  matters  were  di- 
rectly put  in  issue  by  the  defensive  allegations  of  the  answer. 
Confessedly,  the  plaintiff  had  the  laboring  oar,  and,  if  the  evi- 
dence of  the  defendant  was  of  equal  weight  with  that  of  plaintiff, 
the  latter  could  not  recover.  There  was  no  burden  upon  defend- 
ant to  show  affirmatively  that  such  services  were  negligently  or 
unskilfully  performed,  or  that  they  were  not  worth  the  sum 
claimed.  If  his  evidence  in  defense  left  the  issue  in  doubt  or 
uncertainty,  the  plaintiff  could  not  recover.  But  in  the  next 
breath  the  court  tells  the  jury  that  the  burden  rests  upon  the 
defendant  "in  establishing  the  fact  that  the  work  was  improp- 
erly done."  Under  the  circumstances  this  certainly  could  not 
be  true.  The  inconsistency  of  the  two  statements  is  too  apparent 
to  require  argument.  When  it  came  to  the  question  of  damages 
under  the  counterclaim,  the  defendant  could  not  secure  a  recov- 
ery except  that  he  established  a  claim  therefor  by  the  preponder- 
ance of  the  evidence.  The  court  failed  to  properly  distinguish 
between  the  two  issues  presented,  and  the  jury  were  left  to  wan- 
der in  the  realms  of  doubt  and  speculation.  This  was  distinct 
error,  for  which  the  judgment  must  be  reversed.  The  errors 
alleged  as  to  the  improper  admission  of  testimony  are  too  unsub- 
stantial to  require  comment. 

By  the  Court. — The  judgment  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded  for  a  new  trial. 

Langdon  v.  Doud,  6  Allen,  423,  and  might  consider  his  intention  as  mat- 

10    Allen,    433.      Hallet    v.    Bassett,  ter   of   evidence,   were   contradictory 

100    Mass.    167.     Perkins   v.    Davis,  and  insufficient,  and  tended  to  con- 

109    Mass.    239.      The    instructions  fuse,  if  not  to  mislead  the  jury;  and 

given,    informing   the   jury,    in    one  having  been  specifically  excepted  to, 

breath,    that    if    the    defendant    re-  the  exceptions  must  be  sustained, 
sided  out  of  the  commonwealth  his  See    also    Frederick    v.    Allgaier, 

intention    was    immaterial,    and,    in  88  Mo.  598;  Norton  v.  Paxton,  110 

the  next,   that  if  the  jury   were  in  Mo.  456. 
doubt     as     to     his     residence     they 


Sec.  7.]  brusseau  v.  lower  brick  co.  529 

BRUSSEAU  V.  LOWER  BRICK  CO. 

133  Iowa,  245.      [1907.] 

Action  for  damages  caused  by  the  breaking  of  an  elevator 
cable.  Judgment  was  entered  for  plaintiff.  The  defendant 
appeals.    Affirmed. 

Ladd,  J.  The  plaintiff  was  an  employee  of  the  defendant,  and 
at  the  instance  of  its  foreman  was  engaged  in  removing  building 
blocks  from  the  upper  floors  of  its  building.  He  had  placed 
about  one  hundred  and  twenty  of  these  blocks  on  a  car  and  run 
it  on  the  freight  elevator.  As  this  was  descending,  the  cable 
broke,  precipitating  him,  Math  the  load,  to  the  bottom,  and 
seriously  injuring  him.  Several  errors  are  complained  of  as 
having  occurred  in  the  trial.     *     *     * 

IV.  But  two  questions  requiring  attention  remain,  and  these 
are  whether  the  issues  of  assumption  of  risk  by  plaintiff  and 
negligence  of  defendant  were  properly  submitted  to  the  jury. 
The  answer  set  up  that  plaintiff  had  assumed  the  risk  of  the 
cable  being  defective,  and  the  court  submitted  that  issue  to  the 
jury  in  the  ninth  instruction.  But  in  instruction  No.  4^/2  the 
jury  was  told  that,  if  the  defendant  was  negligent  and  the  injury 
resulted  therefrom  without  fault  on  plaintiff's  part,  he  was 
entitled  to  recover,  unless  they  found  that  there  had  been  a 
settlement.  Manifestly  these  instructions  were  contradictory  in 
saying  that  recovery  might  be  had  regardless  of  any  assumption 
of  risk,  and  that  if  plaintiff  had  assumed  the  risk  he  could  not 
recover.  Quinn  v.  Railway,  107  Iowa,  710 ;  Meyer  v.  Boepple 
Button  Co.,  112  Iowa,  51;  Christy  v.  City  Ry.  Company,  126 
Iowa,  428.  An  instruction  similar  to  No.  41/2  was  held  to  have 
been  without  prejudice  in  Stomme  v.  Hanford  Produce  Com- 
pany, 108  Iowa,  137,  owing  to  the  manner  of  submitting  all  the 
issues  later  on  in  the  instructions,  and  in  Wilder  v.  Great  West- 
ern Cereal  Co.,  130  Iowa,  263,  prejudice  was  obviated  by  the  fact 
that  the  issues  were  such  that  a  finding  of  the  company's  negli- 
gence necessarily  negatived  any  assumption  of  risk  by  the  party 
injured.  The  instructions  in  the  case  at  ])ar  are  necessarily  con- 
flicting, and  therefore  erroneous,  but  were  not  prejudicial,  for  the 
reason  that  the  record  is  void  of  anj^  evidence  tending  to  show 
that  plaintiff  had  knowledge  of  the  condition  of  the  cable  or 

appreciated  the  danger  involved  in  operating  the  elevator  with 
H.  T.  p.— 34 


530  CONDUCT   OP   THE   TRIAL,  [ChAP.    IV. 

it.  The  mere  fact  that  he  had  opportunity  of  ascertaining  its 
condition  by  investigation,  while  assisting  another  in  repairing 
the  machinery  connected  therewith  without  exposing  the  cable  to 
view,  when  inspecting  it  was  no  part  of  his  duty,  did  not  charge 
him  with  knowledge,  and  he  must  have  appreciated  the  danger 
in  order  to  have  assumed  the  risk.  There  was  no  evidence  upon 
which  to  submit  the  issue,  and  in  doing  so  the  instructions  were 
more  favorable  to  appellants  than  they  were  entitled  to  have 
them.     *     *     * 


EGGETT  V.  ALLEN. 

106  Wisconsin,  633.      [1900.] 

Bardeen,  J.  *  *  *  The  issue  sharply  outlined  by  the 
pleadings  was  whether  the  defendant  did  in  fact  authorize  or  in- 
stitute the  proceedings  against  the  plaintiff.  The  usual  defenses 
of  want  of  malice,  probable  cause,  or  advice  of  counsel  were  not 
interposed.  No  attempt  M^as  made  to  justify  the  commencement 
of  the  prosecutions.  True,  the  defendant  testified  that  he  con- 
sulted G.  I.  Follett,  an  attorney,  in  regard  to  a  claim  he  had 
against  the  plaintiff;  but  he  nowhere  discloses  what  advice,  if 
any,  was  given  as  to  the  prosecutions  in  question.  Notwithstand- 
ing the  entire  absence  of  any  testimony  in  the  case  on  this  sub- 
ject, the  court  submitted  it  to  the  jury  upon  the  assumption 
that  the  defendant  was  urging  the  advice  of  his  attorney  as  a 
justification  for  having  authorized  or  instituted  the  prosecution 
against  plaintiff.  He  told  the  jury  that  if  a  party  fully  and 
fairly  stated  all  of  the  material  facts  of  the  case  to  his  attorney, 
and  was  by  him  advised  that  he  had  good  grounds  to  proceed  in 
a  criminal  prosecution,  and  he  acted  in  good  faith  upon  such 
advice,  he  was  protected  from  an  action  for  malicious  prosecution. 
Then,  again,  he  said  to  them:  "How  was  he  advised  by  the  at- 
torney? Did  he  fully  and  fairly  state  all  the  material  facts  to 
his  attorney  ? ' '  etc.  It  is  claimed  that  this  introduced  a  foreign 
issue  into  the  case,  and  that  the  prominence  given  it  by  the  trial 
judge  had  a  tendency  to  obscure  or  minimize  the  real  issue,  and 
was  harmful  to  defendant.^    There  seems  to  be  good  ground  for 

1  Gantt,  J.,  in  Mateer  v.  Ey.,  105  of  Jones,  Dickinson  or  the  defend- 
Mo.  320:  "The  evidence  contains  ant.  There  is  not  in  it,  from  be- 
not  one  scintilla  of  fraud  on  the  part      ginning  to  end,  one  word  that  justi- 


11 


Sec.  7.] 


EGGETT   V,   ALLEN, 


531 


this  contention.  The  court  assumed  facts  to  exist  which  did  not 
exist.  The  authorities  are  that  it  is  clearly  error  to  charge  a  jury 
upon  a  supposed  or  assumed  state  of  facts,  of  which  no  evidence 
has  been  offered.^  Such  instructions  presuppose  that  there  is 
some  evidence  before  the  jury  which  they  may  think  sufficient 
to  establish  the  facts  thus  assumed  in  the  opinion  of  the  court; 
and,  if  there  is  no  evidence  which  they  have  a  right  to  consider, 
then  the  charge  does  not  aid  them  in  coming  to  correct  conclu- 
sions, but  its  tendency  is  to  embarrass  and  mislead  them.  2 
Thomp.  Trials,  §§  2295-2315;  U.  S.  v.  Breitling,  20  How.  252; 
Michigan  Bank  v.  Eldred,  9  Wall.  544;  Baltimore  v.  Poultney, 
25  Md.  18.  The  issue  of  justification  under  advice  of  counsel  was 
not  in  the  case,  and  it  was  wrong  to  assume  that  it  was,  and  thus 
distract  the  attention  of  the  jury  from  the  real  issue  presented. 


fied  the  trial  court  in  submitting 
the  issue  of  fraud  to  a  jury.  There 
is  nothing  in  it  tending  in  the  re- 
motest degree  to  impeach  the  ab- 
solute fairness  of  Jones,  the  claim 
agent,  or  Dickinson,  the  superintend- 
ent. There  is  nothing  on  which  to 
base  the  seventh  instruction.  It  was 
error  to  submit  the  question  to  the 
jury  at  all,  and  greater  error  to  give 
the  seventh  instruction.  That  in- 
struction, besides  having  no  evi- 
dence to  support  it,  was  clearly  er- 
roneous in  permitting  the  jury  to 
disregard  the  release,  if  defendant's 
claim  agent  procured  it  by  '  any 
trick  or  artifice. ' 

' '  This  instruction  well  illustrates 
the  vicious  pleading  which  had 
stated  no  substantive  fact  upon 
which  to  hinge  the  charge  of  fraud. 
Of  course,  as  no  fraud  was  specified, 
when  the  court  came  to  instruct,  it 
could  not,  as  required  by  all  correct 


practice,  confine  plaintiff  to  the 
tricks  or  artifices  charged  in  the  pe- 
tition, but  'the  jury  were  given  a 
roving  commission'  to  scent  out  and 
find  some  artifice  or  trick,  whether 
in  the  case  or  not.  Such  a  practice 
cannot  be  tolerated. ' ' 

2  Alderson,  B.,  in  Stracy  v. 
Blake,  1  M.  &  W.  168:  "I  agree 
that  we  are  not  to  take  an  admis- 
sion in  one  plea  as  evidence  on  an- 
other. But  if  the  parties  have  a 
particular  controversy,  and  it  seems 
plain  that  a  certain  fact  is  admitted 
between  them  in  the  course  of  that 
controversy,  may  not  the  jury,  as 
men  of  common  sense,  draw  the 
same  conclusion  as  to  that  fact  as  if 
it  were  formally  proved  before 
them?  I  think  they  may,  and  that 
they  are  at  liberty  to  draw  it  as  to 
all  the  questions  in  issue  in  the 
cause. ' ' 


532  CONDUCT  OP   THE   TRIAL.  [ChAP.    IV, 

MANNING  V.  WEST  END  STREET  RAILWAY  CO. 

166  Massachusetts,  230.     [1896.] 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  being 
struck  by  a  switch-stick  which  flew  from  the  hands  of  a  conductor 
in  the  employ  of  the  defendant  corporation,  as  he  was  using  it 
on  top  of  an  electric  street  car  to  free  the  trolley,  which  had 
caught  in  a  frog  at  the  junction  of  some  overhead  wires  in  a 
street  in  Boston.  At  the  trial  in  the  Superior  Court,  before 
Bishop,  J.,  the  jury  returned  a  verdict  for  the  plaintiff;  and  the 
defendant  alleged  exceptions,  which  appear  in  the  opinion. 

Holmes,  j.  *  *  *  Next  it  is  said  that  there  was  no  evi- 
dence of  negligence  on  the  part  of  the  defendant.  The  conduc- 
tor must  be  taken  to  have  known  that  he  was  in  a  public  street 
in  which  there  were  or  might  be  travelers,  and  therefore  must 
be  taken  to  have  known  that,  if  the  stick  did  fly  with  violence 
from  his  hands,  there  was  a  danger  to  passers  similar,  although 
less  in  degree,  to  that  which  would  have  attended  the  firing  of 
a  pistol  into  the  way.  Apart  from  the  possibility  that  he  might 
receive  an  electric  shock  sufficient  to  make  him  let  go  his  hold, 
the  jury  were  at  liberty  to  say,  from  their  experience  ^  as  men  of 
the  world,  that  under  such  circumstances  such  an  accident  com- 
monly does  not  happen  unless  the  stick  is  carelessly  handled; 
that  it  is  in  the  power  of  the  holder  to  see  that  he  does  not  sub- 
mit it  to  such  a  strain  as  to  make  it  possible  that  it  should  be 
torn  from  his  hands ;  and  to  infer  from  those  general  propositions 
of  experience  that  there  was  a  negligence  in  the  particular  case. 
See  Graham  v.  Badger,  164  Mass.  42,  47 ;  Uggla  v.  West  End 
Street  Railway,  160  Mass.  351 ;  White  v.  Boston  &  Albany  Rail- 
road, 144  Mass.  404.     *     *     * 


BAKER  V.  SUMMERS. 

201  Illinois,  52.      [1903.] 
Mr.  Justice  Cartwright  delivered  the  opinion  of  the  court: 


1  For  other  instances  in  which  a 
jury  may  act  on  general  knowledge, 
see  Wigmore  on  Ev.,  §  2570. 


Sec.  7.]  baker  v.  summers.  533 

The  first  instruction  given  at  the  request  of  plaintiff  was  an 
abstract  proposition  of  law,  stating  the  liability  created  by  the 
Dram-shop  act,  and  the  right  of  action  thereby  given,  substan- 
tially in  the  words  of  ^he  statute,  stating  the  liability  to  be  "for 
all  the  damage  sustained,  and  in  this  case  not  exceeding  the  sum 
of  $5000. ' '  The  instruction  contained  no  other  reference  to  the 
case  and  no  reference  to  the  evidence,  and  did  not  require  proof 
of  facts  which  would  create  a  liability.  The  instruction  was 
erroneous  in  substantially  telling  the  jury  that  the  defendants 
were  liable  for  the  damages  sustained,  not  exceeding  the  sum  of 
$5000,  without  proof  of  the  necessary  facts,  and  merely  because 
the  statute  provided  for  a  liability.^ 

The  second  instruction  told  the  jury  that  they  should  find 
the  issues  for  the  plaintiff  if  she  had  established,  by  a  preponder- 
ance of  the  evidence,  the  material  allegations  of  any  of  the  counts 
in  the  amended  declaration.  There  was  no  instruction  telling  the 
jury  what  the  material  allegations  of  the  several  counts  were, 
and  what  were  the  material  allegations  was  a  matter  of  law  for 
the  court.  Although  it  is  a  practice  not  to  be  commended  for 
the  court  to  refer  the  jury  to  the  declaration  for  the  issues,  it  has 
not  been  considered  error  to  make  such  reference  where  the 
instruction  requires  proof  of  the  averments  of  the  declaration.^ 
The  proper  method  is  for  the  court  to  inform  the  jury,  by  the 

1  Shaw,  C.  J.,  in  Commonwealth  satisfaction,  they  are  to  find  the  de- 
V.  Porter,  10  Metcalf,  263:  "That  fendant  not  guilty." 
course  is,  for  the  judge  to  direct  Brace,  J.,  in  Fisher  v.  Lead  Co., 
the  jury  hypothetically,  to  declare  156  Mo.  479:  "This  case  furnishes 
what  the  law  is,  with  its  exceptions  an  apt  illustration  of  the  futility  of 
and  qualifications,  to  explain  it,  and  endeavoring  to  apply  abstract  prop- 
to  state  the  reasons  and  grounds  of  ositions  of  law  to  a  case  they  do  not 
it,  if,  in  his  judgment,  such  explana-  fit.  For  the  error  noted,  and  to  the 
tion  is  necessary  to  make  it  clearly  end  that  a  jury  in  another  trial  may 
intelligible  to  the  minds  of  men  of  be  told,  not  what  the  law  of  the 
good  judgment  and  common  experi-  case  is — it  is  sufficient  if  the  court 
ence,  but  without  legal  knowledge  understands  that — but  clearly  what 
and  skill;  then  to  state  to  the  jury,  they  must  do,  by  way  of  a  verdict, 
that  if  certain  facts  necessary  to  on  the  facts  in  the  case  really  in  is- 
constitute  the  offense,  and  which  sue,  as  they  may  find  them,  the 
there  is  evidence  tending  to  prove,  judgment  of  the  Circuit  Court  is  re- 
are  proved  to  their  satisfaction,  versed  and  the  cause  remanded  for 
they     are     to     find     the     defendant  new  trial. ' ' 

guilty;  but  if  certain  material  facts,  2  Gantt,  P.  J.,  in  State  v.  David, 

which  there  is  some  evidence  tending  131   Mo.   380:    "Again,   it  is  urged 

to    prove,    are    not   proved    to    their  against   this   instruction   that  it   re- 


534 


CONDUCT   OF   THE   TKIAL. 


[Chap.  IV. 


instructions,  in  a  clear  and  concise  manner,  as  to  what  material 
facts  must  be  found  to  authorize  a  recovery.  The  averments  in 
the  declaration  which  would  be  clear  to  a  lawyer  would  often  be 
obscure  and  unintelligible  to  the  average  juryman.  (Moshier  v. 
Kitchell,  87  111.  18.)  Where  the  jury  are  not  only  referred  to 
the  declaration  to  determine  the  issues,  but  are  instructed  to  find 
a  verdict  for  the  plaintiff  if  the  material  allegations  of  the  declar- 
ation are  proved,  they  are  left  to  decide,  as  a  matter  of  law,  what 
are  the  material  allegations,  and  might  conclude  that  some  alle- 
gation essential  and  material  in  the  law  was  not  material  or  neces- 
sary to  be  proved  to  justify  a  recovery;  and  such  an  instruction 
as  this  was  held  to  be  undoubtedly  erroneous  in  Toledo,  St.  Louis 
and  Kansas  City  Railroad  Co.  v.  Bailey,  145  111.  159.     *     *     * 


SWANSON  V.  ALLEN. 


108  Iowa,  419.     [1899.] 


On  the  22d  day  of  June,  1896,  the  plaintiff  executed  a  written 
order  to  the  Aultraan  Company,  of  Ohio,  to  deliver  to  him  a  com- 
plete threshing  outfit  through  its  agent,  R.  H.  Allen,  at  Early, 
Iowa,  accompanied  by  a  specific  written  warranty.  *  *  * 
The  petition  alleged  in  the  first  two  counts  the  purchase  of  the 
outfit  of  the  defendant  on  his  oral  warranty  that  it  was  of  good 
material,  and  would  do  as  good  work  and  as  much  work  in  all 


ferred  the  jury  to  the  indictment  to 
find  the  issues  they  were  to  pass 
upon.  As  was  said  in  this  court  in 
State  V.  Scott,  109  Mo.  226,  'the 
jury  should  not  be  referred  to  the 
pleadings  in  civil,  or  the  indictment 
in  criminal,  cases  to  ascertain  the 
issue. '  But  mere  reference  to  the 
indictment  by  the  words  '  as  charged 
in  the  indictment'  or  'as  mentioned 
in  the  indictment,'  after  the  court 
has  once  clearly  defined  the  issues, 
does   not   constitute   error. 

"In  this  case  the  court  had  fully 
defined   the   essentials   of   the   crime 


charged,  which  was  simply  that  de- 
fendant had  murdered  Henderson, 
the  deceased,  by  administering  to 
him  strychnine.  The  mere  reference 
by  the  court  and  counsel  for  the 
State  in  these  instructions  to  'the 
crime  charged  in  the  indictment' 
could  not  have  been  prejudicial. 
Counsel  for  defendant  uses  the  same 
phraseology  in  his  own  instruction 
in  the  same  connection.  Britton  v. 
St.  Louis,  120  Mo.  437;  Edelmann 
V.  Transfer  Co.,  3  Mo.  App.  503; 
Corrister  v.  Kailroad,  25  Mo.  App. 
619.     *     *     *" 


Sec.  7.]  swanson  v.  allen.  535 

kinds  of  grain  as  any  other  of  like  size  and  capacity,  and  a  breach 
thereof.  In  count  1  the  plaintiff  prayed  for  damages,  but  in 
count  2,  in  addition,  a^-erred  the  tender  of  the  return  of  the  out- 
fit, and  asked  judgment  for  the  value  of  the  property  paid,  and 
the  cancellation  of  the  notes  executed.  Count  3  was  like  count  1, 
save  that  it  alleged  the  personal  warranty  mentioned  as  an  in- 
ducement to  take  the  outfit,  even  though  the  property  was  bought 
of  the  company.  The  answer  consisted  of  a  general  denial,  and 
an  averment  that  the  sale  was  by  a  written  order,  and  that  the 
property  was  accepted  by  the  plaintiff  thereunder;  and,  in  the 
counterclaim,  recovery  was  claimed  on  three  notes  matured  be- 
cause of  the  nonpayment  of  interest.  Trial  to  jury,  verdict  and 
judgment  for  the  plaintiff,  and  the  defendant  appealed, 

Ladd,  J.  Nothing  is  of  greater  importance  in  a  jury  trial 
than  that  the  court  shall  make  clear  and  certain  to  the  jurors  the 
very  issues  they  are  to  determine.  Ordinarily  those  required  to 
serve  are  unaccustomed  to  the  duties  devolving  upon  them,  and 
are  likely  to  become  confused  by  the  mass  of  conflicting  evidence 
and  the  illimitable  arguments  of  counsel.  The  very  purpose  of 
instructing  them  is  to  make  plain  the  issues  they  are  to  try,  and 
the  rules  of  law  by  which  the  evidence  is  to  be  examined  and 
applied.  Pleasants  v.  Fant,  22  Wall,  116 ;  Duthie  v.  Town  of 
AVashburn,  87  Wis.  231  (58  N.  W.  Rep.  381).  They  should  not 
be  required  to  search  the  pleadings,  even  though  copied  into  the 
instructions,  for  the  controverted  facts  to  be  passed  upon.  It  is 
often  difficult  for  the  experienced  lawyer  to  fix  upon  the  precise 
contentions  of  the  parties,  and  there  can  never  be  any  degree  of 
certainty  that  jurors,  without  legal  training,  have  been  able  to 
do  so  from  an  examination  of  the  pleadings ;  besides,  it  is  as 
much  the  duty  of  the  judge  to  extract  the  issues  from  the  plead- 
ings, and  make  them  known  and  intelligible  to  the  jurors,  as  it  is 
their  duty  to  pass  upon  them  when  this  has  been  done.  The 
practice  of  referring  the  jury  to  the  pleadings  has  been  con- 
demned by  this  court.  Porter  v.  Knight,  63  Iowa,  367 ;  Keatley 
V.  Railway  Co.,  94  Iowa,  688;  Bryan  v.  Railway  Co.,  63  Iowa, 
464.  Also  that  of  reading  them  as  part  of  the  charge.  Hall  v. 
Carter,  74  Iowa,  366.  Copying  the  pleadings  into  the  instruc- 
tions as  a  statement  of  the  issues  is  subject  to  the  same  criticism 
as  the  use  of  the  originals,  if  the  jury  are  permitted  to  take  these 
upon  retirement  for  deliberation.  The  only  difference  lies  in 
their  attachment  as  a  preface  to  the  other  portion  of  the  charge, 


536  CONDUCT    OF   THE   TRIAL.  [ChaP.    IV. 

and  the  use  of  the  original  separately.  In  Gorman  v.  Railway 
Co.,  78  Iowa,  518,  so  copying  was  disapproved,  and  in  Robinson 
&  Co.  V.  Berkey,  100  Iowa,  136,  it  was  held  erroneous.  In  Hollis 
V.  Insurance  Co.,  65  Iowa,  460,  the  issues  were  subsequently 
stated,  the  copies  being  treated  as  surplusage.  In  Little  v.  Mc- 
Guire,  43  Iowa,  447 ;  and  Crawford  v.  Nolan,  72  Iowa,  673,  it  was 
held  that,  in  view  of  the  plain  and  unambiguous  language  of  the 
pleadings,  and  the  simplicity  of  the  issues,  stating  them  in  the 
words  of  the  pleader  was  without  prejudice.  The  rule,  then,  de- 
ducible  from  these  authorities  is  that  the  court  must  determine 
from  an  examination  of  the  pleadings  what  the  issues  are,  and 
so  state  them  to  the  .jury  as  to  be  readily  comprehended,  and 
that  setting  out  the  pleadings  in  lieu  thereof  will  not  be  tolerated, 
unless  manifestly  without  prejudice.  We  may  add  that  such 
issues  cannot  be  too  clearly  and  explicitly  stated,  and  that  terse- 
ness and  brevity  will  uniformly  add  emphasis. 

In  the  ease  at  bar,  the  pleadings,  except  an  amendment  and 
general  denials,  were  copied  as  a  statement  of  the  issues,  cov- 
ering nine  closely  printed  pages  of  the  abstract,  and  constituted 
the  first  eleven  instructions.  As  the  petition  was  in  three  counts, 
and  the  counterclaim  contained  a  like  number,  this  involved  un- 
necessary repetition,  tending  to  confusion,  and  to  the  obscurity 
of  the  real  differences  between  the  several  issues  in  controversy. 
They  should  have  been  made  plain  and  accessible  to  the  jury,  in 
language  comprehensible  to  those  unlearned  in  the  law,  and  free 
from  vain  repetition.     *     *     * 

Judgment  reversed. 


GURLEY  V.  MO.  PAC.  RY.  CO. 

93  Missouri,  445.      [1887.] 

Black,  J.  Plaintiff  recovered  a  judgment  against  the  de- 
fendant for  ten  thousand  dollars  damages  for  personal  injuries. 
The  grounds  of  the  defendant's  complaint  are:  (1)  the  refusal 
of  the  court  to  sustain  a  demurrer  to  the  plaintiff's  evidence; 
(2)    the   giving  of  plaintiff's   first   instruction;    (3)    excessive 

damages. 

Twelve  or  fifteen  years  ago  the  defendant  constructed  a  plank 
walk  from  its  depot  at  Pleasant  Hill  to  the  Planters'  House,  at 


Sec.  7.]  gurley  v.  mo.  pac.  ry.  co.  537 

that  place.  The  walk  was  then  intended  to  accommodate  passen- 
gers in  going  to  and  fr^m  the  dining-room  at  the  hotel.  It  has, 
at  all  times  since,  been  used  by  the  public  in  going  to  and  from 
the  depot.  Between  the  Planters'  House  and  the  depot,  the  walk 
crosses  a  side  or  house  track,  which  is  habitually  used  by  the 
defendant  for  standing  or  storing  cars.  On  the  22d  of  January, 
1885,  a  number  of  cars  were  standing  on  this  track,  six  or  seven 
to  the  north,  and  others  to  the  south  of  the  crossing.  They  were 
detached  at  the  walk  so  as  to  leave  an  open  space  of  three  or  four 
feet  for  persons  to  pass  through.  The  petition  sets  out  the  fore- 
going facts,  and  then  states  that,  while  attempting  to  use  the 
crossing,  and  by  reason  of  the  negligence  of  the  defendant's 
servants,  plaintiff  was,  "suddenly,  and  in  a  manner  hereinafter 
stated,"  caught  between  said  cars;  "that,  at  the  time  he  ap- 
proached said  crossing  as  aforesaid,  he  attempted  to  pass  through 
the  opening  between  the  cars,  stationed  on  either  hand  thereof 
as  aforesaid ;  that,  just  as  he  entered  said  opening,  defendant, 
by  its  agents,  servants,  and  employees,  unskilfully,  negligently, 
and  carelessly,  and  with  great  violence,  drove  and  forced  on  or 
against  the  said  stationary  cars,  on  the  northeasterly  end  of  said 
side  track,  certain  loose  cars,  or  a  loose  car,  whereby  said  station- 
ary cars  were  driven  021  and  against  plaintiff,  and  he  was 
crushed  and  mangled  between  them  and  the  other  of  said  sta- 
tionary cars,  and  received  the  irreparable  injuries  aforesaid." 

The  evidence  shows  that  these  cars  were  in  the  position  before 
described  during  the  day,  and  that  various  persons  had  passed 
between  them  on  the  walk.  About  seven  or  eight  o'clock  in  the 
evening,  plaintiff  started  from  the  Planters'  House  to  the  depot, 
intending  to  post  a  letter  on  the  mail  train.  He  says  Avhen  he 
got  to  the  crossing,  he  stopped  and  looked  both  ways,  but  could 
see  no  engine  or  moving  train.  The  instant  he  stepped  between 
the  cars  those  to  the  north  suddenly  moved  to  the  south  and 
caught  him  as  the  cars  came  together..  He  received  injuries  to 
his  leg  which  are  serious  and  permanent.  He  states  that  when 
he  approached  the  cars  they  appeared  to  be  still,  that  it  was  light, 
and  that  he  saw  no  engine  or  moving  train,  and  that  the  racket 
when  hurt  seemed  to  come  from  the  car  that  hit  him.  The  grade 
of  the  side  track  at  and  to  the  north  of  the  crossing  slopes  south- 
ward. The  evidence  of  the  plaintiff's  son,  and  that  of  some 
employees  of  the  defendant,  who  were  called  by  the  plaintiff, 
tends  to  show  that  there  was  no  engine  at  or  about  the  side 


I 


538  CONDUCT   OF   THE   TRIAL.  [ChaP.    IV. 

track  at  that  time  or  even  that  afternoon.  The  defendant  asked 
no  instructions,  and  offered  no  evidence,  save  that  of  one  or  two 
physicians  as  to  the  character  of  the  injuries.  The  plaintiff's 
first  instruction  states  hypothetically  the  foregoing  facts  in 
detail,  which  the  evidence  shows  and  tends  to  show,  and  con- 
cludes as  follows:  "That,  at  the  time  plaintiff  so  attempted  to 
pass  between  said  cars  on  said  crossing,  he  was,  by  reason  of 
the  carelessness  and  negligence  of  the  defendant's  agents,  serv- 
ants, and  employees,  without  any  negligence  or  carelessness  on 
his  part  contributing  to  the  injury  he  received,  caught  between 
the  cars  so  standing  on  said  side  track  and  so  separated  at  said 
crossing,  and  that  he  thereby,  and  by  reason  thereof,  received 
the  injuries  complained  of  in  his  petition,  then  the  jury  will  find 
for  the  plaintiff."     *     *     * 

From  the  general  and  indefinite  instructions,  which  were  given, 
it  would  seem  that  the  case  was  tried  by  the  plaintiff  and  court 
on  the  theory  that  it  was  sufficient  and  good  pleading  to  state 
generally,  that  plaintiff  was  injured  by  the  carelessness  and 
negligence  of  the  defendant's  agents  and  servants.  It  is  clear 
that  the  pleader  never  thought  of  resting  his  case  on  such  alle- 
gations ;  for  while  there  is  such  general  allegation,  still,  by  a  part 
and  parcel  of  it,  reference  is  made  to  the  subsequent  specific  acts 
of  negligence.  But  a  petition  with  such  a  general  allegation 
only  would  be  worthless,  and  a  like  instruction  equally  faulty. 
In  cases  like  the  present  one,  where  the  negligence  is  a  mixed 
question  of  fact  and  law,  where  the  jury  must  determine 
whether  the  defendant  was  negligent  or  not  in  the  light  of  the 
surrounding  circumstances,  the  acts,  which  it  is  intended  to  be 
shown  were  negligently  done,  should  be  set  out  with  a  reasonable 
degree  of  particularity,  and  in  some  appropriate  form  of  ex- 
pression charged  to  have  been  negligently  done.  The  defendant 
will  then  be  notified  of  what  he  is  charged.  Issues  can  be  made 
and  submitted  to  the  jury.  Of  course  the  statement  of  the  mat- 
ters of  inducement,  the  surroundings  and  situation  of  the  parties, 
need  not  be  coupled  with  an  allegation  of  negligence.  We  have 
recently  held,  where  the  method  of  pleading  before  indicated  is 
pursued,  the  plaintiff  may,  under  his  petition,  show  that  the  de- 
fendant knew,  or,  by  the  exercise  of  ordinary  care,  would  have 
known,  that  the  machinery  or  appliances  were  defective  and  out 
of  repair.     Crane  v.  Railroad,  87  Mo.  591.     The  acts  done  or 


Sec.  7.]  davidson  v.  Stanley.  539 

omitted  must,  however,  be  stated  with  a  reasonable  degree  of 
particularity. 

So  far  as  the  instruction  is  concerned,  it  permits  a  recovery 
if  the  jury  should  find  that  the  plaintiff  was,  by  reason  of  negli- 
gence of  defendant 's  employees,  caught  between  the  cars.  Negli- 
gent in  what  respect?  It  does  not  say.  Such  a  general  and 
indefinite  instruction  would  be  bad  on  good  pleadings.  It  is  true 
the  instruction  requires  the  jury  to  find  the  existence  of  a  great 
many  things,  but  they  are  not  recjuired  to  find  that  there  was 
any  negligence  on  the  part  of  defendant  in  respect  of  any  of 
them. 

With  these  results  the  question  of  excessive  damages  becomes 
immaterial.  The  judgment  is  reversed  and  the  cause  remanded. 
All  concur. 


DAVIDSON  V.  STANLEY. 
2  Manning  &  Granger,  721.      [1841.] 

Assumpsit,  against  the  defendant  as  the  drawer,  payee,  and 
indorser  of  ten  bills  of  exchange,  amounting  altogether  to  £7366 
17s.  7d.,  drawn,  and  payable,  at  different  periods  in  the  year 
1839. 

The  pleas  denied  that  the  bills  were  drawn  or  indorsed  by  the 
defendant. 

At  the  trial  before  Rolfe,  B.,  at  the  last  Liverpool  Assizes, 
the  ten  bills  were  produced,  and  purported  to  be  drawn  and 
indorsed  by  "Robert  Blundell,  by  procuration  of  Thomas  S.  M. 
Stanley. 

Blundell,  the  person  representing  himself  in  these  instru- 
ments as  the  agent  of  the  defendant,  had  been  his  understeward, 
but  about  eleven  years  ago,  seven  months  after  the  death  of  the 
late  head  steward,  he  was  promoted  to  the  office  of  head  steward. 
It  was  stated  and  admitted,  that  since  the  negotiation  of  the 
bills  in  question  Blundell  had  been  convicted  of  embezzling  the 
moneys  of  his  employer,  and  transported  for  fourteen  years. 

The  bills  were  drawn  upon  and  accepted  by  five  persons,  one 
of  whom  was  tenant  of  the  defendant,  another  his  shepherd,  and 
the  other  three  were  also  servants  employed  by  him,  who  had, 
at  Blundell 's  request,  given  their  acceptances  to  Blundell,  in 
blank. 


540  CONDUCT    OF    THE   TRIAL.  [ChAP.    IV. 

There  was  no  proof  of  any  direct  authority  from  the  defend- 
ant to  Blundell,  either  to  draw  or  to  indorse  bills  for  him.  The 
circumstances  under  which  it  was  contended,  on  the  part  of  the 
plaintiff,  that  the  jury  might  infer  an  authority,  were  these : 
(The  report  here  sets  out  a  number  of  circumstances  relied  on 
to  show  authority.) 

The  learned  judge  in  his  direction  to  the  jury,  told  them,  that 
in  order  to  make  out  that  a  party  is  drawer  and  indorser  by  the 
agency  of  another,  it  is  not  necessary  to  have  a  written  authority, 
but  that  it  is  of  the  greatest  importance  that  there  should  be  very 
clear  evidence  that  the  agent  has  authority  for  what  he  does  with 
regard  to  bills :  that  ordinarily  speaking  persons  receiving  such 
bills  would  require  distinct  written  or  verbal  authority,  in  order 
that  there  might  be  no  difficulty  afterwards:  that  a  party  who 
transacts  business  with  one  who  acts  in  the  name  of  another  may 
always  render  himself  secure  by  refusing  to  advance  money 
without  distinct  proof  of  the  alleged  authority;  that  the  au- 
thority, however,  might  be  circumstantial  only,  as  where  the 
principal  profited  by  the  transaction,  or  trusted  to  the  agent  for 
reimbursement,  or  where,  though  he  derived  no  advantage  from 
the  transaction,  he  acquiesced  in  it,  but  that  in  such  cases  the- 
evidence  should  be  extremely  clear;  that  although  the  defend- 
ant's bankers  might  have  had  reason  to  suppose  that  Blundell 
was  using  the  defendant's  name  with  his  authority,  that  was  not 
equivalent  to  notice  to  the  defendant  himself  and  that  the  de- 
fendant was  not  bound  by  anything  of  which  the  bankers  may 
have  had  notice,  or  which  by  inquiry  they  might  have  fished  out. 
The  learned  baron  went  minutely  through  the  evidence,  and 
observed  upon  the  absence  of  McDonald  and  the  non-production 
of  the  pass-book  with  the  Commercial  Bank.  The  jury,  which 
was  a  special  one,  consulted  together  for  a  few  minutes,  and 
then  returned  a  verdict  for  the  defendant. 

Stephen,  Serjt.,  now  moved  for  a  new  trial  on  the  ground  of 
misdirection.     *     *     * 

TiNDAL,  C.  J.  I  am  of  opinion  that  no  ground  has  been  shown 
for  this  motion.  I  do  not  perceive  that  any  proposition  of  law- 
was  laid  down  by  the  learned  judge  which  was  not  strictly  cor- 
rect. The  whole  objection  amounts  to  this, — that  the  opinion  of 
the  judge  was  delivered  in  favor  of  the  defendant.  I  think  it  is 
no  objection  that  a  judge  lets  the  jury  know  the  impression 
which  the  evidence  has  made  upon  his  own  mind.    At  all  events, 


II 


Sec.  7.]  Davidson  v.  Stanley.  541 

the  party  objecting  to  such  a  course  should  show  that  the  im- 
pression entertained  by  the  judge  was  not  justified  by  the  evi- 
dence. If  bankers  could  recover  upon  such  a  state  of  facts  as 
was  presented  to  the  jury  in  this  case,  every  farm  agent  might 
pledge  the  credit  of  his  employer  to  an  indefinite  amount.  Here, 
there  was  no  direct  authority ;  and  the  case  of  Murray  v.  The  East 
India  Company,  establishes  that  a  general  authority  to  receive 
and  pay,  does  not  authorize  the  agent  to  indorse  bills  of  exchange. 
Here,  it  was  never  shown  that  the  defendant  knew,  or  had  the 
means  of  knowing,  that  his  name  was  used  in  the  manner  in 
which  it  was  used  by  Blundell. 

BosANQUET,  J.  I  am  quite  of  the  same  opinion.  I  think  the 
verdict  was  perfectly  right.  The  learned  judge  considered  that 
there  was  some  slight  evidence  of  authority,  and  that  he  would 
not  be  justified  in  taking  the  case  upon  himself.  It  seems  to 
me  that  if  a  nonsuit  had  been  directed,  there  must  have  been  a 
new  trial.  A  judge  has  a  right  to  state  what  impression  the  evi- 
dence has  produced  on  his  mind. 

CoLTMAN,  J.  The  learned  judge  seems  to  have  made  strong 
observations;  but  not  stronger  than  he  was  justified  in  making. 
A  large  mass  of  evidence  had  been  given,  which,  though  of  little 
weight  in  itself,  was  of  such  a  nature  as  might  mislead  a  jury. 

Rule  refused.^ 

1  See    also    Mitchell   v.    Harmony,  follow    from   that,    that  we    are    to 

13  Howard,   (U.  S.)   115,  approving  allow  the  bill  of  exceptions.     I  my- 

an  equally  vigorous  comment  on  the  self  have  had  some  practical  experi- 

evidence.  ence  as  a  common  law  judge,  and  I 

The  judge  is  not  required  to  com-  know  that  some  judges  have  thought 
ment  on  the  evidence  or  advise  the  it  right  to  balance  the  evidence  on 
jury  as  to  matters  of  fact,  but  may  questions  which  juries  have  to  con- 
do  so  as  a  matter  of  discretion.  sider  on  the  one  side  and  on  the 
Lord  O'Hagan  in  Prudential  Ins.  other,  and  to  leave  the  jurors,  who 
Co.  V.  Edmonds,  L.  E.  2  App.  Cases,  are  constitutionally  the  judges  of 
487:  "I  am  free  to  say  that  the  fact,  to  draw  their  own  conclusions; 
expressions  used  by  the  learned  but  I  am  aware,  also,  that  other 
judge  were  very  strong  indeed,  and  judges,  and  I  should  infer  from  this 
I  am  not  indisposed  to  admit,  with  bill  of  exceptions,  although  I  know 
one  of  the  learned  judges  of  the  nothing  of  his  practice  otherwise, 
Court  of  Appeal,  that  the  jurors  may  that  the  learned  Lord  Chief  Baron  is 
to  some  extent  have  thought  those  one  of  them,  who  think  it  to  be  their 
expressions  strong  enough  to  coerce  duty  to  direct  the  juries  as  well  as 
their  judgment  upon  the  question  they  can  upon  questions  of  fact  as 
before  them.     But  it  does  not  at  all  upon  questions  of  law;  not  to  coerce 


542  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

ALLIS  V.  LEONARD. 

58  New  York,  288.     [1874.] 

Appeal  by  defendants  Stevens  and  Hathaway  from  judgment 
of  the  General  Term  of  the  Supreme  Court  in  the  third  judicial 
department,  affirming,  as  to  them,  a  judgment  in  favor  of  plain- 
tiff entered  upon  a  verdict,  and  affirming  an  order  denying  a 
motion  for  a  new  trial. 

This  was  an  action  upon  a  promissory  note.  The  defense  was 
payment.  Plaintiff  was  called  as  a  witness  and  gave  testimony  in 
his  OAvn  behalf. 

Defendants  called  two  witnesses  who  testified,  in  substaance, 
that  they  knew  plaintiff 's  reputation  and  that  it  was  bad. 

The  court  charged  the  jury,  among  other  things,  as  follows : 

''You  have  the  plaintiff's  evidence,  to  which  you  are  to  give 
such  credit  as  you  think  it  entitled ;  and  allow  me  to  say,  before 
the  consideration  of  the  evidence,  that  the  impeachment  or  at- 
tempted impeachment  of  the  plaintiff  has  entirely  failed.  It 
has  not  affected  his  credit,  but  yet  the  credit  of  the  witness  is 
always  in  the  hands  of  jurors,  and  they  are  to  give  such  credit 
to  each  one  as  they  are  entitled  to.  You  are  to  look  at  the  witness 
on  the  stand  and  observe  the  evidence  he  gives,  and  the  proba- 
bility of  the  story  he  relates,  and  the  consistency  of  the  state- 
ment he  makes,  and  his  apparent  candor  and  frankness  and  his 
interest  in  the  case.  All  these  things  you  will  take  into  consider- 
ation in  determining  his  credit.  You  will  take  into  consideration 
such  evidence  as  tends  to  impeach — for  instance,  if  his  state- 
ments out  of  court  are  inconsistent  with  his  evidence  in  court, 
it  is  proper  for  your  consideration  in  determining  the  credit  due 
him  as  a  witness ;  and  it  is  proper  for  you  to  consider  the  credit 
to  be  given  to  the  plaintiff  and  all  the  different  witnesses  called 

them,  but  to  give  expression  to  their  expressions  in  this  charge,  yet  inas- 
own  opinions  in  clear  words,  and  if  much  as  the  reference  of  a  matter 
those  expressions  of  their  opinions  to  the  judgment  of  the  jury  must 
in  clear  words  do  lead  the  jury  to  very  often  be  an  understood  refer- 
conclusions  in  accordance  with  the  ence  and  not  an  expressed  refer- 
conclusions  of  the  learned  judge,  the  ence,  I  take  it  that  upon  the  whole 
judge  is  the  better  pleased  with  that  is  no  ground  upon  which  we 
that,  and  very  often  the  jurymen  can  set  aside  the  verdict  or  main- 
are  none  the  worse  for  it.  There-  tain  the  bill  of  exceptions." 
fore,  although  there  are  very  strong 


II 


Sec.  7.]  allis  v,  Leonard.  543 

upon  the  stand.     You  are  to  determine  who  has  told  the  truth 
and  what  the  truth  of  this  transaction  is. ' ' 

The  defendant  excepted  to  so  much  of  the  charge  as  is  in  the 
words  following: 

"That  the  impeachment   or  attempted   impeachment   of  the 
plaintiff  has  entirely  failed;  it  has  not  affected  his  credit." 

Church,  C.  J.  Two  witnesses  gave  evidence  tending  to  show 
that  the  plaintiff's  general  character*  was  bad.  This  evidence, 
though  not  very  strong,  was  legitimate  upon  that  question.  The 
judge  charged  the  jury,  "that  the  impeachment,  or  attempted 
impeachment  of  the  plaintiff,  has  entirely  failed;  it  has  not 
affected  his  credit,"  etc.,  which  was  specifically  excepted  to.  I 
can  see  no  sufficient  answer  to  the  point  that  this  was  error.  The 
evidence  was  competent,  and  whether  strong  or  weak,  should 
have  been  submitted  to  the  jury  for  their  consideration,  upon  the 
credibility  of  the  witness.  Three  answers  have  been  suggested: 
First,  that  other  portions  of  the  charge  neutralized  the  effect  of 
this  clause.  It  is  true  that  the  learned  judge  told  the  jury  that 
the  credibility  of  the  witness  was  a  question  for  them,  but  we 
think  the  fair  construction  of  all  he  said  about  it  was  to  instruct 
them  that,  in  passing  upon  the  credibility  of  the  witness  they 
must  exclude  from  consideration  the  element  of  general  bad  char- 
acter, sought  to  be  proved  by  the  two  witnesses  called,  and  the 
jury  must  have  so  understood  it.  Second,  it  is  said  that,  at 
most,  it  was  but  an  expression  of  opinion  or  commentary  upon 
the  facts  which  is  not  the  subject  of  a  legal  exception.  This  is 
not  tenable.  It  was  more  than  an  opinion  or  commentary;  it 
was  a  decision  or  instruction  that  the  evidence  adduced  was  not 
sufficient  to  be  considered  by  them,  that  it  was  a  failure,  and  did 
not  affect  the  credit  of  the  witness.  This  was  an  instruction  in 
the  form  and  substanace  of  law.  There  are  cases  holding  that  a 
mere  opinion  or  commentary  upon  the  facts  is  not  the  subject 
of  an  exception,  but  in  such  cases,  it  is  held  that  the  judge  must 
accompany  such  commentary  with  explicit  instructions  that  it 
is  the  duty  of  the  jury,  notwithstanding,  to  consider  the  evidence 
and  decide  as  they  think  the  truth  requires."^  (19  Wend.  186; 
42  Barb.  326).     To  be  free  from  legal  objection  it  must  be  ad- 

1  Mr.   Justice   Swayne  in  Nudd      in    charging    the    jury,    the    judge 
V.  Burrows,  91  U.  S.  426:   "It  ap-       commented   upon   the   evidence, 
pears  by  the  bill  of  exceptions,  that,  Questions    of    law    are   to   be    de- 


544 


CONDUCT   OF   THE   TRIAL. 


[Chap.  IV. 


visory  merely,  and  must  not  be  put  in  the  form  of  a  direction 
as  matter  of  law.  (21  Wend.  509-525.)  The  jury  is  the  con- 
stitutional tribunal  for  the  determination  of  questions  of  fact ; 
and  I  am  persuaded  that  justice  is  better  administered  when 
courts  refrain  altogether  from  any  interference  with  its  right- 
ful province.  Jurors  cannot  distinguish  between  a  direction  in 
a  matter  of  law  or  fact.  They  are  bound  to  take  the  law  from 
the  court;  and  a  positive  direction  from  the  bench,  as  to  a  ques- 
tion of  fact,  is  as  potent  as  if  it  pertained  to  a  question  of  law; 
and  even  an  expression  of  opinion  calculated  to  influence  the  de- 
cision of  the  jury  in  a  matter  clearly  within  their  cognizance, 
should  be  critically  scrutinized.  In  this  case  the  direction  was 
unqualified  as  we  construe  the  charge.-  Third,  it  is  claimed  that 
the  exception  is  not  available,  because  no  request  was  made  to 
submit  the  question  to  the  jury.  The  rule  invoked  does  not  apply. 
There  was  no  necessity  for  a  request ;  the  court  had  made  a  dis- 


termined  by  the  court;  questions 
of  fact,  by  the  jury.  The  authority 
of  the  jury  as  to  the  latter  is  as 
absolute  as  the  authority  of  the 
court  with  respect  to  the  former. 

No  question  of  fact  must  be  with- 
drawn from  the  determination  of 
those  whose  function  it  is  to  decide 
such  issues. 

The  line  which  separates  the  two 
provinces  must  not  be  overlooked  by 
the  court.  Care  must  be  taken  that 
the  jury  is  not  misled  into  the  belief 
that  they  are  alike  bound  by  the 
views  expressed  upon  the  evidence 
and  the  instructions  given  as  to  the 
law.  They  must  distinctly  under- 
stand that  what  is  said  as  to  the 
facts  is  only  advisory,  and  in  no 
wise  intended  to  fetter  the  exercise 
finally  of  their  own  independent 
judgment.  Within  these  limita- 
tions, it  is  the  right  and  duty  of  the 
court  to  aid  them  by  recalling  the 
testimony  to  their  recollection,  by 
collating  its  details,  by  suggesting 
grounds  of  preference  where  there 
is  contradiction,  by  directing  their 
attention    to     the    most    important 


facts,  by  eliminating  the  true  points 
of  inquiry,  by  resolving  the  evi- 
dence, however  complicated,  into  its 
simplest  elements,  and  by  showing 
the  bearing  of  its  several  parts  and 
their  combined  effect,  stripped  of 
every  consideration  which  might  oth- 
erwise mislead  or  confuse  them. 
How  this  duty  shall  be  performed 
depends  in  every  case  upon  the  dis- 
cretion of  the  judge.  There  is  none 
more  important  resting  upon  those 
who  preside  at  jury-trials.  Consti- 
tuted as  juries  are,  it  is  frequently 
impossible  for  them  to  discharge 
their  function  wisely  and  well  with- 
out this  aid.  In  such  cases,  chance, 
mistake,  or  caprice,  may  determine 
the  result. 

We  do  not  think  the  remarks  and 
suggestions  of  the  learned  judge  in 
this  case  exceeded  the  proper  li- 
cense. ' ' 

2  And  so  in  M  'Lanahan  v.  Ins. 
Co.,  1  Pet.  170,  where  the  judge 
charged  that  upon  the  whole  evi- 
dence the  plaintiffs  were  not  en- 
titled to  recover. 


Sec.  7.]  grand  trunk  ry,  v.  ives.  545 

tinct  ruling  +hat  the  attempted  impeachment  was  a  failure, 
which  as  we  have  seen  was  error,  and  the  defendant  excepted. 
This  was  all  that  was  necessary  to  protect  the  defendant's  rights. 
We  cannot  of  course  speculate  as  to  whether  this  error  had  any 
effect  upon  the  result  or  not.  We  are  not  permitted  to  consider 
that  question.  The  error  is  one  which  cannot  be  overlooked  with- 
out establishing  a  dangerous  precedent. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered,  costs 
to  abide  the  event. 

All  concur. 

Judgment  reversed. 


GRAND  TRUNK  RY.  v.  IVES. 

lU  V.  S.  408.      [1892.] 

Mr.  Justice  Lamar.  *  *  *  it  is  also  insisted  that  the  court 
erred  in  refusing  the  following  request  of  the  defendant  for 
instructions : 

*'If  you  find  that  the  deceased  might  have  stopped  at  a  point 
fifteen  or  eighteen  feet  from  the  railroad  crossing,  and  there  had 
an  unobstructed  view  of  defendant's  track  either  way;  that  he 
failed  so  to  stop ;  that  instead  the  deceased  drove  upon  the  de- 
fendant's  track,  watching  the  Bay  City  train,  that  had  already 
passed,  and  with  his  back  turned  in  the  direction  of  the  approach- 
ing train,  the  deceased  was  guilty  of  contributing  to  the  injury, 
and  3^our  verdict  must  be  for  the  defendant,  although  you  are 
also  satisfied  that  the  defendant  was  guilty  of  negligence  in  the 
running  of  the  train  in  the  particulars  mentioned  in  the  declara- 
tion." 

The  reason  given  by  the  court  for  refusing  this  request  was 
that ' '  it  is  too  much  upon  the  weight  of  the  evidence  and  confines 
the  jury  to  the  particular  circumstance  narrated  without  notice 
of  others  that  they  may  think  important."  This  reason  is  a 
sound  one.  In  determining  whether  the  deceased  was  guilty  of 
contributory  negligence  the  jury  were  bound  to  consider  all  the 
facts  and  circumstances  bearing  upon  that  question,  and  not 
select  one  particular  prominent  fact  or  circumstance  as  controll- 
ing the  case  to  the  exclusion  of  all  the  others.  Cooper  v.  Lake 
Shore  &  ]\Iich.  South.  Railway  Co.,  supra;  Baltimore,  etc.,  Rail- 

H.  T.  p.— 36 


546  CONDUCT   OP   THE   TRUL,  [ChaP.    IV. 

road  V.  Kane,  69  Maryland,  ll.i  Moreover,  the  substance  of  the 
request,  so  far  as  it  was  correct,  had  already  been  given,  in  gen- 
eral terras,  by  the  court  in  that  part  of  the  charge  referring  to 
the  degree  of  care  and  caution  required  of  the  deceased  in  ap- 
proaching the  railroad  crossing,  in  order  to  free  him  from  the 
charge  of  contributory  negligence ;  and  the  refusal  of  the  court 
to  give  it  again,  in  different  language,  was  not  error.  Erie  Rail- 
road Co.  V.  Winter,  143  U.  S.  60,  75. 

Judgment  affirmed. 


BARR  V.  THE  CITY  OF  KANSAS. 

105  Missouri,  550.     [1891.] 

Action  for  personal  injuries  alleged  to  have  been  caused  by 
falling  into  a  hole  in  the  street  negligently  left  unguarded  by  the 
city.  The  defendant  denied  the  negligence  charged,  and  set  up 
contributory  negligence  on  the  part  of  the  plaintiff.  There  was 
a  verdict  for  plaintiff,  and  defendant  appealed.^ 

Brace,  j.  *  *  *  Instruction,  numbered  2,  given  for  the 
plaintiff  is  as  follows :  ' '  The  plaintiff,  Mrs,  Barr,  was  only  re- 
quired to  exercise  ordinary  care  in  passing  over  Campbell  street ; 
and  ordinary  care  is  such  care  as  a  person  of  ordinary  prudence 
would  have  exercised  under  similar  circumstances;  and  she  had 
the  right  in  crossing  the  street  to  assume  that  the  same  was  in 
safe  condition,  unless  she  knew  or  had  reason  to  suppose  that  it 
was  unsafe ;  and  if  she  did  not  know  or  had  no  reason  to  sup- 
pose that  the  street  was  unsafe  by  reason  of  the  hole  in  question, 
then  the  jury  cannot  find  her  guilty  of  contributory  negligence 
alone  from  the  fact  that  she  was  running  when  she  fell  into  the 
hole,  or  that  her  attention  was  attracted  to  some  other  object 
so  that  she  did  not  notice  where  she  was  stepping. ' ' 

1  Thayer,    Circuit    Judge    in    Ins.  evidence    which    had    an    immediate 

Co.  V.  Hillmon,  107  Fed.  834:    "Be-  bearing   on  the  same   question,   and 

sides,    this    instruction    singled    out  might   be   regarded   as  very  persua- 

one  fact  bearing  upon  the  question  sive  evidence  that  the  body  returned 

whether  the  corpse  that  was  brought  was   HUlmon  's   dead  body. '-' 

back    to    Lawrence    was    Hillmon 's  And  so  in  Ey.  v.  Leak,  163  U.  S. 

body,    and    gave    it    undue    promi-  280. 

nence,  inasmuch  as  there  were  maiiy  i  The     statement    has    been 

other    facts    and    circumstances    in  densed. 


II 


Sec.  7.]  barr  v.  the  city  op  Kansas.  547 

The  crucial  question  of  fact  in  the  case  was  whether  the  plain- 
tiff was  guilty  of  contributory  negligence,  a  question  that  could 
be  fairly  determined  by  the  jury  only  in  the  light  of  all  the  facts 
and  circumstances  immediately  preceding  and  attending  the 
injury.  This  instruction  selects  4)ut  of  those  facts  two  of  the 
most  important,  directly  points  the  attention  of  the  jury  to  them, 
and  tells  them  that  neither  of  these  acts  of  the  plaintiff  alone 
is  sufficient  to  warrant  them  in  finding  her  guilty  of  contributory 
negligence,  leaving  in  the  background  and  out  of  sight  all  the 
other  facts  in  the  case  by  which  these  facts  might  have  been  quali- 
fied and  characterized  as  prudent  or  imprudent  under  the  actual 
circumstances  of  the  case.  The  instruction  was  well  calculated  to 
mislead  the  jury.  They  ought  not  to  have  been  so  directed  as 
that  they  could  feel  at  liberty  to  consider  that  any  particular 
fact  bearing  upon  the  issue  was  eliminated  from  the  case,  and 
that  they  were  free  to  determine  it  upon  what  remained.  In 
determining  the  question  of  the  plaintiff's  negligence  all  the 
facts  and  circumstances  in  evidence  bearing  upon  that  issue  are 
to  be  considered  and  passed  upon,  not  separately  and  independ- 
ently, but  in  their  entirety  and  in  their  combination  with  and 
relation  to  each  other  as  shown,  and  it  is  the  peculiar  province  of 
the  jury,  when  thus  viewing,  to  measure  them  by  a  standard  of 
prudence  and  care  derived  from  their  own  experience  of  what 
an  ordinarily  prudent  and  careful  person  would  or  should  have 
done  under  the  circumstances ;  and  the  court  cannot  select  out  of 
those  facts  some  one  or  more  of  them  and  affix  to  it,  or  them, 
an  independent  value  without  distorting  the  comprehensive  view 
the  jury  should  take  of  the  case  as  a  whole. 

Whether  a  person  by  running  in  the  public  streets  in  one 
direction,  while  looking  in  another,  is  guilty  of  negligence  is  a 
question  of  fact  for  the  jury  that  can  be  determined  in  any  given 
case  only  by  considering  the  two  acts  in  combination  with  each 
other,  and  in  connection  with  all  tlie  other  attendant  facts  and 
circumstances,  and  it  was  the  province  of  the  jury  to  weigh  and 
pass  upon  those  acts  viewed  in  such  combination  and  connection, 
and  not  alone,  or  as  separate  and  independent  facts.  The  court 
in  this  case,  without  giving  any  instruction  advising  the  jury 
that  these  acts  are  to  be  so  viewed  and  considered,  practically 
deprived  the  acts  themselves  of  much,  if  not  all,  their  proper 
force  and  significance  in  the  mind  of  the  jury,  in  the  absence  of 
such  advice,  by  telling  them  that  neither  of  those  acts  alone  will 


I 


548  CONDUCT    OP   THE   TRIAL.  [ChaP.    IV. 

warrant  them  in  finding  the  plaintiff  guilty  of  negligence.  Upon 
the  same  principle  the  court  might  have  gone  on  and  taken  up 
each  fact  in  the  case,  and  at  the  end  having  found  that  each  fact 
in  itself  was  naught  as  evidence  to  charge  the  plaintiff  with 
negligence,  and  having  so  told  the  jury,  without  further  advice, 
it  would  not  be  a  matter  of  suprise  that  having  been  told  that 
each  fact  was  naught  they  should  find  that  the  sum  of  the  facts 
was  naught,  and  that  there  was  no  negligence,  when  if  the  facts 
had  been  considered  in  their  proper  bearing  and  relation  to  each 
other  a  case  of  gross  negligence  might  have  been  made  out. 

The  difference  between  the  instruction  supposed  and  the  one 
in  hand  is  one  of  degree  only,  and  not  of  principle ;  it  is  a  vicious 
mode  of  instruction,  trenches  upon  the  province  of  the  jury  to 
weigh  all  the  evidence,  without  bias  or  comment  from  the  court, 
and  we  find  no  other  instruction  given  in  this  case  curing  the 
one  under  consideration. 

The  vice  of  specially  calling  the  attention  of  the  jury  to 
isolated  facts  or  otherwise  giving  prominence  to  a  view  of  the 
case  favorable  to  one  side,  while  measurably  retiring  the  view 
of  the  other  side  by  ignoring  it,  or  presenting  it  only  in  general 
terms,  has  been  frequently  condemned  by  this  court.  Sawyer  v. 
Railroad,  37  Mo.  263,  loc.  cit.;  Anderson  v,  Kincheloe,  30  JMo. 
525 ;  Fine  v.  Public  Schools,  39  Mo.  67 ;  Rose  v.  Spies,  44  Mo.  23 ; 
Jones  V.  Jones,  57  Mo.  142;  Raysdon  v.  Trumbo,  52  Mo.  38; 
Chappell  V.  Allen,  38  Mo.  213.     *     *     * 


INLAND  NAVIGATION  CO.  v.  TOLSON. 

139  U.  S.  551.      [1891.] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  March  11,  1884,  by  Tolson  against 
the  Inland  and  Seaboard  Coasting  Company  to  recover  damages 
for  the  crushing  of  his  foot  by  the  negligent  management  of  a 
steamboat  of  the  defendant.  The  plaintiff  recovered  a  verdict  for 
$8,000,  judgment  on  which  was  affirmed  in  general  term.  6 
Mackey,  39.     The  defendant  sued  out  this  writ  of  error. 

At  the  trial  it  appeared  that  the  plaintiff  was  the  owner  and 
wharfinger  of  a  wharf  in  the  Potomac  River,  known  as  Sham- 


I 


Sec.  7.]  inland  navigation  co.  v.  tolson.  549 

rock  pier,  built  on  piles,  in  a  suitable  and  substantial  manner, 
early  in  1883,  and  the  front  of  which,  twelve  feet  long,  was 
parallel  with  the  channel  of  the  river,  and  had  three  heavy  fender 
piles  at  each  corner;  that  on  September  15,  1883,  the  plaintiff, 
having  a  small  basket  of  pears  and  an  empty  demijohn  to  put 
on  board  the  defendant's  steamboat  for  Washington,  neglected 
to  signal  her  as  she  came  up  the  river,  and  hailed  her  as  she 
was  passing  the  wharf,  whereupon  she  backed  in  to  make  a  stern 
landing,  and  struck  the  piles  at  the  lower  end  of  the  wharf  with 
considerable  force ;  that  at  that  time  the  weather  was  calm  and 
the  tide  just  turned  flood,  and  neither  the  captain  nor  the  pilot 
was  in  the  pilot-house. 

The  plaintiff  testified  that,  while  he  was  standing  near  the 
edge  of  the  wharf  by  the  capstan  post,  ready  to  catch  a  line  to 
be  thrown  from  the  steamboat,  she  struck  the  wharf  with  such 
force  as  to  start  and  break  the  plank  flooring,  and  to  catch  and 
crush  his  left  foot  between  the  planks  and  that  post;  and  that 
at  that  moment  the  mate  of  the  steamboat  reached  over  and  took 
the  basket  from  his  hand. 

The  defendant  called  as  witnesses  the  pilot  and  others  on 
board  the  steamboat,  who  testified  that  the  plaintiff,  as  the 
steamboat  neared  the  wharf,  called  out  that  there  was  no  need 
to  throw  a  line,  and  leaned  over  and  handed  the  basket  and 
demijohn  to  the  mate,  and  the  mate  gave  the  signal  to  go  ahead, 
and  he  and  the  plaintiff  shook  hands  and  joked  together,  and 
the  boat  then  struck  the  wharf,  and  jammed  the  plaintiff's  foot 
between  the  wharf  and  one  of  the  fender  piles ;  that  the  boat  was 
then  turned  about  and  made  a  bow  landing  at  the  wharf  for  the 
purpose  of  rendering  the  plaintiff  assistance,  and  the  plaintiff 
was  taken  ashore,  and  then  and  there,  in  the  presence  of  the 
mate  and  others,  said  "that  he  was  hurt  by  his  own  fault,  that 
he  was  standing  in  a  dangerous  position."  The  defendant  also 
introduced  evidence  that  the  plaintiff",  the  next  morning,  at  his 
own  house,  explained  to  two  of  his  neighbors  how  the  accident 
happened,  and  said  to  them  "that  it  was  his  own  fault  and 
nobody  else's,  that  he  did  not  blame  any  of  the  boat  people," 
and  stated  the  circumstances  of  the  accident  in  the  same  way 
as  the  defendant's  witnesses. 

Upon  the  comparative  weight  to  be  given  to  the  statements 
made  by  the  plaintiff  shortly  after  the  injury,  and  to  his  testi- 
mony at  the  trial,  the  judge  instructed  the  jury  as  follows: 


550  CONDUCT   OF   THE   TRIAL.  [ChaP.    IV. 

"It  may,  at  first,  seem  surprising  that  a  man  who  himself  wears 
the  shoe  should  not  be  able  to  tell  where  it  pinches ;  that  a  man 
who  has  his  foot  crushed  should  not  necessarily  know  better 
than  any  other  party  where  it  was  hurt,  and  how  it  was  hurt ; 
and  yet  it  is  not  an  uncommon  thing  for  other  men  who  saw  the 
thing  done,  to  be  able  to  tell  better  than  the  man  himself  how 
the  accident  happened.  The  shock  and  pain  may  have  the  effect 
of  rendering  the  man  quite  incapable  of  telling  just  exactly  how 
the  thing  took  place,  so  if  you  find  the  man  at  different  times 
making  somewhat  different  statements  it  does  not  at  all  follow 
that  it  was  his  intention  to  mislead.  You  are,  therefore,  to 
look  at  any  difference  of  statements  that  he  may  have  made,  if 
you  believe  he  did  make  different  statements,  in  that  point  of 
view.  He  may  not  be  the  best  witness  as  to  what  did  happen 
to  himself  or  the  manner  in  which  the  thing  may  have  hap- 
pened. ' ' 

The  defendant  excepted  to  this  instruction,  and  cofitended  that 
it  invaded  the  province  of  the  jury  to  determine  the  credit  to  be 
given  to  the  plaintiff's  various  and  contradictory  statements,  by 
directing  them  to  look  at  the  evidence  in  a  particular  point  of 
view,  and  by  treating  the  shock  and  pain  of  the  injury  as 
affecting  not  only  his  statements  made  the  same  evening,  but 
also  those  made  to  his  neighbors  the  next  morning. 

But  the  instruction,  fairly  construed,  after  calling  the  atten- 
tion of  the  jury  to  two  distinct  considerations,  the  one,  the  effect 
of  the  shock  and  pain  (which  could  not  have  been  understood 
to  apply  to  statements  made  after  the  shock  and  pain  had  sub- 
sided), and  the  other,  that  the  making  of  different  statements 
at  different  times  did  not  necessarily  imply  an  intention  to  mis- 
lead, suggested  to  the  jury  to  look  at  any  difference  in  the 
plaintiff's  statements  in  that  point  of  view.  This  was  clearly 
within  the  judge's  authority  and  discretion  in  aiding  the  jury 
to  perform  their  duty.^     *     *     * 


BEAUMONT  v.  BEATOIONT. 

152  Federal,  55.     [C.  C.  A.  1907.] 

Gray,  Circuit  Judge.     *     *     *     In  the  case  against  John  L. 
Beaumont  there  are  seven  assignments  of  error.     It  will  only  be 
1  See  also  York  v.  Ey.,  84  Me.  117. 


Sec.  7.]  beaumont  v.  beaumont.  551 

necessary  *  3  consider  the  first  and  second.    They  are  as  follows : 

"First.  Because  the  court  instructed  the  jury,  with  reference 
to  the  testimony  of  Charles  Beauyiont  as  to  what  Lucius  S. 
Beaumont  said  and  did  at  the  time  of  the  alleged  gift,  as 
follows : 

"  'You  have  no  right  to  reject  except  for  good  reasons — 
reasons  perfectly  satisfactory  to  you ; '  adding  the  following 
words  on  that  subject :  '  You  have  no  right,  as  counsel  for  de- 
fendant argued  in  this  case,  to  ignore  credible,  unimpeached 
and  uncontradicted  testimony  adduced  by  the  defendant,  and 
if  you  regard  Charles'  testimony  or  any  other  testimony  produced 
by  the  defendant  in  relation  to  the  alleged  gift  as  credible,  un- 
impeached and  uncontradicted  testimony,  why,  of  course,  you 
cannot  ignore  it  or  disregard  it,  but  the  facts  of  this  case  are 
such  that  I  feel  very  sure  I  would  not  be  justified  in  saying  to 
you  that  you  were  bound  to  accept  as  absolute  truth  all  that 
Charles  has  testified  to.  Testimony  must  be  credible  in  its 
nature  to  be  influential  and  must  come  from  a  credible  source. 
You  are  bound,  I  repeat,  to  consider  very  carefully  the  testimony 
given  by  Charles.  It  is  testimony  of  a  most  vital  character  in 
this  case,  but  as  was  said  by  the  Supreme  Court  of  New  Jersey 
in  the  case  w^hich  I  have  referred  to — I  refer  to  the  case  of 
Cooley  V.  Barcroft,  in  43  N.  J.  Law,  363 :  ' '  The  character  of  a 
witness  or  a  number  of  witnesses  may  be  so  impeached,  or  their 
story  so  shattered  by  cross-examination  or  rendered  so  doubtful 
by  inherent  improbabilities,  that  their  testimony,  standing  un- 
opposed by  direct  counter  testimony,  would  be  fairly  subjected 
to  suspicion.  No  court  upon  review  could  say,  as  a  legal  con- 
clusion, that,  under  such  circumstances,  a  judgment  which 
ignored  such  testimony  was  illegal."  '  "     *     *     * 

We  think  the  language  used  by  the  learned  trial  judge,  as 
recited  in  the  first  assignment,  while  quite  accurately  stating, 
as  an  abstract  proposition,  the  rights  and  duty  of  the  jury  in 
regard  to  credible,  unimpeached  and  uncontradicted  testimony, 
was  on  the  whole,  when  taken  in  connection  with  the  allusions 
made  to  the  testimony  of  Charles  Beaumont,  calculated  to 
prejudice  the  jury  unduly  against  the  plaintiff  in  error.  We 
do  not  think  that  any  inference  could  have  been  drawn  by 
the  jury  from  this  part  of  the  charge,  other  than  that,  in  the 
opinion  of  the  learned  trial  judge,  the  testimony  of  Charles 
Beaumont  should  be  considered  as  inherently  improbable,  and 


552  CONDUCT  OP  THE  TRIAL.  [Chap.  TV. 

tliaL  the  truth  of  his  story  had  been  shattered  by  cross-examiua- 
tion,  and  that  they  were  justified  in  rejecting  it.  A  careful 
reading  of  this  testimony  l^as  not  disclosed  to  us  any  ground 
for  such  an  inference.  We  do  not  discover  that  there  is  inherent 
improbability  in  the  story  of  Charles,  or  that  that  story  has  been 
shattered  by  cross-examination.  Although  the  trial  judge  does 
not  directly  assert  these  things,  it  seems  to  be  suggested  by  the 
manner  in  which  the  instruction  is  framed. ^     *     *     * 


NORFOLK,  ETC.,  RY.  v.  U.  S. 

177  Federal,  623.     [C.  C.  A.  1910.] 

Dayton,  District  Judge.  *  *  *  Finally,  did  the  court  be- 
low err,  to  the  prejudice  of  the  defendant,  by  giving,  at  the 
instance  of  the  plaintiff,  instructions  4,  5  and  7  ?  These  instruc- 
tions were  as  follows : 

"  (4)  The  court  instructs  the  jury  that  they  can  consider  the 
evidence  offered  by  the  defendants  relating  to  inspection  of  the 
alleged  defective  car,  N.  &  W.  21158,  at  Bristol  only  in  so  far 
as  it  tends  to  contradict  the  testimony  of  the  plaintiff's  witnesses 
upon  the  point  as  to  whether  or  not  the  defect  as  alleged  in  the 
declaration  did  really  exist  at  the  time  that  the  said  car  left 
Roanoke,  Va. 

"(5)  The  fact  that  the  defendant's  witness  testified  that  an 
inspection  of  N.  &  W.  car  21158  was  made  at  Bristol  and  that 
the  alleged  defect  set  out  in  the  declaration  was  not  discovered 
by  him  can  only  be  considered  as  tending  to  contradict  the 
evidence  of  the  government's  witness  on  that  point,  and  its 
weight  is  for  the  jury. 

"(7)  The  court  instructs  the  jury  that  in  passing  upon  the 
question  of  the  conflict  in  the  evidence  of  the  government  in- 
spectors, and  the  inspector  of  the  defendant  railroad  company  at 
Bristol  who  testified  to  having  inspected  car  N.  &  W.  21158, 
they  must  consider  that  one  is  positive  testimony  and  the  other 
is  negative.  The  inspectors  of  the  government  testify  that  they 
inspected  the  coupling  and  saw  that  it  was  defective.     There- 

1  See  also  Weis  v.  Bethlehem  Iron  as  to  weight  of  the  evidence  unfair 
Co.,    88   Fed.   23,  holding   a   charge       and    misleading. 


I 


Sec.  7.]  Norfolk,  etc.,  ry.  v.  u.  s.  553 

fore  the  cci'rectness  of  their  testimony  depends  only  on  the  fact 
whether  or  not  they  swore  to  the  truth;  while,  on  the  other 
hand,  in  considering  the  testimony  of  the  inspector  of  the  rail- 
road, there  are  two  things  to  be  taken  into  consideration :  First, 
did  he  testify  to  the  truth  when  he  stated  that  he  did  not 
discover  the  defect  in  the  coupling;  second,  if  he  did  swear  the 
truth  when  he  so  stated,  then  did  he,  in  examining  the  train 
in  the  limited  time  in  which  he  claimed  to  have  inspected  it, 
make  such  close  and  accurate  inspection  as  to  be  able  to  give 
persuasive  evidence  in  contradiction  of  the  testimony  of  the 
government  inspectors. ' ' 

These  instructions  told  the  jury  that  the  evidence  of  the  in- 
spector of  the  company,  whose  express  duty  it  was  to  inspect 
all  cars  coming  into  his  yard  at  Bristol  with  a  view  to  discover 
and  report  these  very  defects  in  safety  appliances,  and  who  has 
testified  that  in  discharge  of  that  express  duty  he  did  inspect 
this  particular  car  21158  and  found  no  defect  in  its  coupling 
device,  could  only  be  considered  "in  so  far  as  it  tends  to  con- 
tradict" the  testimony  of  the  government  inspectors;  that  such 
evidence  could  only  "be  considered  as  tending  to  contradict  the 
evidence  of  the  government  on  that  point"  (that  is,  whether 
defect  in  the  coupling  device  existed  or  not)  ;  and  that  such 
evidence  was  negative  as  to  the  inspection,  w^hile  that  given  by 
the  government  inspectors  was  positive.  We  think  there  is  error 
in  these  instructions,  and  that  they  should  not  have  been  given 
for  these  reasons :  First,  because  they  held  the  evidence  to  be 
solely  contradictory  in  character ;  second,  because  they  tended  to 
give  undue  weight  to  the  evidence  of  the  government  inspectors ; 
and,  third,  because  the  evidence  of  the  company's  inspector  was 
not  negative  but  positive.  We  think  the  District  Court  for  the 
Western  District  of  Ohio  in  United  States  v.  Balto.  &  Ohio  R.  R. 
Co.  (not  reported,  but  published  by  the  Interstate  Commerce 
Commission  in  pamphlet  form),  Judge  Cochran,  charging  the 
jury  in  a  similar  case,  has  rightly  held : 

"In  considering  the  testimony  of  witnesses  the  jury  should 
not  give  either  more  or  less  weight  to  the  testimony  of  any  wit- 
ness because  of  the  fact  that  such  witness  testifies  on  behalf 
of  the  government,  or  on  behalf  of  the  railroad  company,  but  the 
jury  should  give  to  the  testimony  of  each  witness  that  weight 
which  in  its  judgment  it  is  entitled  to  from  all  the  facts  and 
circumstances  in  the  case." 


554  CONDUCT   OP   THE   TRIAL.  [ChAP.    IV. 

The  District  Court  for  the  Northern  District  of  Illinois,  in 
Atchison,  T.  &  S.  F.  Ry.  Co.  (not  reported,  but  published  by  the 
Interstate  Commerce  Commission),  has  reiterated  and  approved 
this  proposition.  The  evidence  of  the  company's  inspector  was 
not  negative.  It  is  to  be  remembered  that  he  was  employed  by 
the  company  for  the  express  purpose  of  inspecting  cars  and  dis- 
covering and  reporting  these  and  other  defects;  that  he  has 
testified  that  in  discharge  of  this  express  duty  he  inspected  this 
train  and  this  particular  car  in  question;  that  he  lifted  all  the 
rods  or  levers  to  see  if  they  were  in  condition  from  one  end  of 
the  train  to  the  other,  always  in  accord  with  a  fixed  practice  of 
his  inspection ;  and  that  he  found  no  defect  in  the  coupling  device 
in  question.     This  was  positive  evidence  of  a  negative  fact. 

In  17  Cyc.  802,  it  is  well  said : 

"The  marked  superiority  of  positive  testimony  is  most  com- 
monly affirmed  in  those  cases  where  the  opposing  testimony  is 
what  has  been  hereinbefore  denominated  'strictly  negative.' 
If  there  is  evidence  that  the  attention  of  a  negative  witness 
was  specially  directed  to  the  fact,  or  it  can  be  legitimately  pre- 
sumed or  inferred  that  he  was  alert  and  would  have  observed 
had  the  fact  occurred,  his  testimony  that  he  did  not  see  or  hear 
is  not  necessarily  weaker  than  opposing  positive  and  affirmative 
testimony,  and  may  indeed  be  entitled  to  more  weight  than  the 
latter.  Where  witnesses  testify  positively  to  a  fact  and  other 
witnesses  absolutely  deny  it,  the  rule  of  comparative  value  as 
between  positive  and  negative  testimony  does  not  apply,  and  the 
only  question  is  to  which  side,  under  all  the  circumstances,  credit 
is  due." 

And  a  large  number  of  authorities  are  there  cited. 

In  a  case  directly  in  point,  the  District  Court  of  the  United 
States  for  the  Western  District  of  Pennsylvania  (United  States 
V.  Baltimore  &  Ohio  R.  Co.,  170  Fed.  456)  held: 

"Positive  testimony  is  to  be  preferred  to  negative  testimony, 
other  things  being  equal;  but  where  it  was  the  duty  of  an 
inspector  on  the  part  of  the  railroad  company  to  inspect  cars, 
and  he  says  that  he  did  inspect  the  cars  that  came  in  and  did 
not  see  certain  defective  appliances,  that  is  not  such  negative 
testimony  that  it  should  not  receive  the  same  consideration,  other 
things  being  equal  between  the  witnesses,  as  positive  testimony." 
See,  also,  Denver  &  R.  G.  R.  Co.  v.  Lorentzen,  24  C.  C.  A.  592, 
79  Fed.  291. 


Sec.  7.]  statutes  limiting  the  charge.  555 

For  this  error  in  giving  these  instructions  the  judgment  of  the 
court  must  be  reversed,  and  the  cause  remanded,  with  instruc- 
tions to  set  aside  the  verdict  and  grant  a  new  trial. 

Reversed. 


STATUTES  LIMITING  THE  CHARGE.i 

General  Statutes,  Massachusetts,  1860.     (Chapter  115.) 

§  5.  The  courts  shall  not  charge  juries  with  respect  to  matters 
of  fact,  but  may  state  the  testimony  and  the  law. 

Illinois  Statutes,   1913.2      (Chapter  110.) 

[72.  Charging  jury.]  §  72.  The  court,  in  charging  the  jury, 
shall  only  instruct  as  to  the  law  of  the  case. 

[73.  Instructions  to  be  in  writing.]  §  73.  Hereafter  no 
judge  shall  instruct  the  petit  jury  in  any  case,  civil  or  criminal, 
unless  such  instructions  are  reduced  to  writing. 

[74.  Marking  instructions — Modifying.]  §74.  When  instruc- 
tions are  asked  which  the  judge  cannot  give,  he  shall,  on  the 

1  These  and  similar  statutory  pro-  jury,    cannot    be    reviewed    on    writ 

visions  in  the  various  states  do  not  of  error.     Carver  v.  Jackson,  4  Pet. 

affect   the   practice   in   the   Federal  1,  80;  Magniac  v.  Thompson,  7  Pet. 

courts.  348,   390;    Mitchell  v.   Harmony,   13 

Mr.  Justice  Gray,  in  Vicksburg,  How.  115,  131;  Transportation  Line 
etc.,  E.  E.  Co.  V.  Putnam,  118  U.  S.  v.  Hope,  95  U.  S.  297,  302;  Taylor 
545:  "In  the  courts  of  the  United  on  Evidence  (8th  ed.),  §  25.  The 
States,  as  in  those  of  England,  powers  of  the  courts  of  the  United 
from  which  our  practice  was  de-  States  in  this  respect  are  not  con- 
rived,  the  judge,  in  submitting  a  trolled  by  the  statutes  of  the  State 
case  to  the  jury,  may,  at  his  discre-  forbidding  judges  to  express  any 
tion,  whenever  he  thinks  it  neces-  opinion  upon  the  facts.  Nudd  v.  Bur- 
sary to  assist  them  in  arriving  at  a  rows,  91  U.  S.  426 ;  Code  of  Georgia, 
just  conclusion,  comment  upon  the  §  3248.  The  exceptions  to  so 
evidence,  call  their  attention  to  much  of  the  judge's  charge  as  bore 
parts  of  it  which  he  thinks  impor-  upon  the  liability  of  the  defendant 
tant,  and  express  his  opinion  upon  cannot  therefore  be  sustained. ' ' 
the  facts ;  and  the  expression  of  "  It  seems  that  such  a  statute  im- 
such  an  opinion,  when  no  rule  of  pliedly  takes  away  the  power  to 
law  is  incorrectly  stated,  and  all  sum  up  the  evidence.  Killian  v. 
matters  of  fact  are  ultimately  sub-  Eigenmann,  57  Ind.  480;  Eose  v. 
mitted  to  the   determination   of  the  Kansas  City,  125  Mo.  App.  231. 


556  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

margin  thereof,  write  the  word  "refused,"  and  such  as  he 
approves  he  shall  write  on  the  margin  thereof  the  word  "given," 
and  he  shall  in  no  case  after  instructions  are  given,  qualify, 
modify,  or  in  any  manner  explain  the  same  to  the  jury  otherwise 
than  in  writing.  Exceptions  to  the  giving  or  refusing  any 
instruction  may  be  entered  at  any  time  before  the  entry  of  final 
judgment  in  the  case. 

Missouri  Revised  Statutes,  1909. 

[1987.  Instructions.]  §  1987.  When  the  evidence  is  concluded 
and  before  the  case  is  argued  or  submitted  to  the  jury  or  to  the 
court  sitting  as  a  jury,  either  party  may  move  the  court  to  give 
instructions  on  any  point  of  law  arising  in  the  cause,  which 
shall  be  in  writing  and  shall  be  given  or  refused.  The  court 
may  of  its  own  motion  give  like  instructions,  and  such  instruc- 
tions as  shall  be  given  by  the  court  on  its  own  motion  or  the 
motion  of  counsel  shall  be  carried  by  the  jury  to  their  room 
for  their  guidance  to  a  correct  verdict  according  to  the  law 
and  evidence;  which  instructions  shall  be  returned  by  the  jury 
into  court  at  the  conclusion  of  the  deliberations  of  such  jury, 
and  filed  by  the  clerk  and  kept  as  a  part  of  the  record  in  such 
case. 


GROWS  V.  MAINE  CENTRAL  RY.  CO. 

69  Maine,  412.     [1879.] 

Case  for  personal  injuries  received  in  a  railroad  crossing  acci- 
dent.    *     *     * 

Upon  the  evidence  in  the  case  it  was  contended  in  argument  by 
the  plaintiff's  counsel  that  the  engineer,  under  the  peculiar  cir- 
cumstances of  the  case,  when  he  first  saw  the  plaintiff  in  the  way 
moving  towards  the  crossing,  had  no  right  to  assume  that  the 
plaintiff  had  seen  the  train  or  even  knew  that  it  was  approaching, 
and  that  the  law  required  him  to  use  due  care  to  avoid  injuring 
the  plaintiff  after  he  saw  him  in  peril ;  and  that  the  fact  that  the 
engineer  did  not  then  sound  the  whistle,  or  give  the  plaintiff 
any  w^arning,  taken  in  connection  with  the  fact  that  no  statute 
signals  had  previously  been  given,  and  that  the  engineer,  after 


Sec.  7.]  grows  v.  maine  central  rt.  co,  557 

he  saw  the  plaintiff,  kept  no  lookout  to  watch  him,  and  allowed 
his  train  to  continue  on  at  the  same  high  rate  of  speed  as  before, 
was  a  fact  to  be  considered  by  the  jury  in  support  of  the  allega- 
tion that  he  ran  his  train  recklessly,  after  he  saw  the  plaintiff 
in  peril. 

Upon  this  point  the  presiding  justice  charged  the  jury  in  the 
following  language,  in  which  it  is  claimed  that  he  made  an 
erroneous  statement  as  to  the  evidence  upon  a  material  fact, 
and  expressed  an  opinion  upon  issues  of  fact  arising  in  the  case 
in  disregard  of  chapter  212  of  the  public  laws,  1874 : 

"Upon  this  branch  of  the  case,  I  do  not  perceive  any  neces- 
sity whatever  for  me  to  consider  the  question  whether  this  was 
a  road  where  the  statute  signals  were  required  or  not.  There  is 
no  evidence  in  the  case  that  the  conductor  or  the  engineer  saw 
the  plaintiff  sooner  than  the  plaintiff  saw  the  train — about 
thirty-eight  rods  distant  as  they  were  coming  out  of  the  cut, 
as  I  recollect  it,  is  the  testimony  when  each  saw  the  other. 
From  the  time  the  plaintiff  saw  the  train  he  had  all  the  notice 
the  statute  signals  would  give  him,  and,  as  was  said  in  the 
opinion  of  the  law  court,  'vision  was  better  than  hearing.'  The 
object  of  the  statute  signals  was  to  give  the  plaintiff  notice  that 
the  train  was  approaching,  and  if  as  soon  as  the  engineer  saw 
the  plaintiff,  the  plaintiff  saw  the  train,  then  so  far  as  this 
averment  in  the  writ  is  concerned,  that  the  engineer  ran  reck- 
lessly after  seeing  him,  it  is  entirely  immaterial  whether  the 
statute  signals  were  given  or  not.  The  averment  of  the  plaintiff 
upon  this  branch  of  the  case  is  that  the  engineer  recklessly  ran 
his  train  after  he  saw  the  plaintiff.  The  plaintiff  saw  the  engineer 
as  soon  as  the  engineer  saw  him,  so  that  it  does  not  tend  to  sus- 
tain or  disprove  this  allegation  to  show  that  the  statute  signals 
were  not  given.  If  they  were  required  before  the  engineer  saw 
him  it  does  not  tend  to  sustain  this  allegation  that  the  engineer 
recklessly  ran  his  train  after  he  saw  him ;  and  whether  they  were 
given  after  the  engineer  saw  him  or  not  is  immaterial  because 
the  plaintiff  had  seen  the  train,  and  the  ringing  of  the  bell  or 
sounding  of  the  whistle  would  be  no  more  warning  to  him  than 
seeing  the  train  itself. ' ' 

The  verdict  was  for  the  defendants,  and  the  plaintiff  alleged 
exceptions  and  also  filed  a  motion  to  set  aside  the  verdict  as 
against  the  weight  of  evidence  and  against  law. 

Virgin,  j.     *     *     *     Tt  is  contended  that  the  presiding  jus- 


558  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

tice  "expressed  an  opinion  upon  an  issue  of  fact  arising  in  the 
case,"  and  that  the  plaintiff  "being  aggrieved  thereby,"  is  en- 
titled to  a  new  trial,  in  accordance  with  the  provisions  of  St. 
1874,  Chap.  212.  The  expression  of  opinion  was  in  the  charge. 
The  judge,  in  illustrating  a  principle  of  law,  said  that,  so  far 
as  he  recollected  the  testimony,  "the  plaintiff  saw  the  engineer 
as  soon  as  the  engineer  saw  him."  But  a  mistake  of  this  kind 
is  not  such  an  expression  of  opinio^  upon  an  issue  of  fact  as  is 
contemplated  by  the  statute. ^  If  the  judge  inadvertently  mis- 
state a  fact,  the  counsel  should  at  the  time  call  his  attention  to  it, 
that  it  may  then  and  there  be  coi'rected  by  reference  to  the 
reporter,  if  necessary.  Bradstreet  v.  Bradstreet,  64  Maine,  204 ; 
State  V.  Reed,  62  Maine,  128,  137.     *     *     * 


EDDY  V.  GRAY. 

4  Allen  (Mass.),  435.     [1862.] 

The  trial  was  held  before  Lord,  J.,  on  a  complaint  under  the 
bastardy  act.     *     *     * 

During  the  argument  of  the  complainant's  counsel  to  the  jury, 
the  judge  interrupted  him,  saying,  "You  argue  as  if  the  com- 
plainant had  testified  that  she  has  had  no  sexual  intercourse 
with  any  other  person  than  the  defendant."  The  counsel  replied, 
"Yes,  sir,  I  so  understood  her."  The  judge  said,  "I  do  not 
think  she  thus  testified,  but  it  is  for  the  jury  to  say."  The 
counsel  continued  to  argue  as  if  she  had  thus  testified.  In  his 
charge  the  judge  said  to  the  jury  substantially  as  follows :  "You 
observed  that  I  interrupted  the  counsel  in  his  argument  in  rela- 
tion to  the  testimony  of  the  complainant.  I  did  not  understand 
her  to  testify  that  she  had  no  sexual  intercourse  with  any  other 
person  about  the  time  of  her  alleged  connection  with  the  defend- 
ant. My  attention  was  called  to  it,  and  I  was  struck  with  the 
fact  that  neither  counsel  asked  the  question.  The  importance 
of  that  matter  is  this :  the  question  is  not  simply,  did  the 
complainant  have  criminal  connection  with  the  defendant,  but, 
is  he  the  father  of  the  child?     If  she  had  connection  with  no 

1  For  a  case  of  prejudicial  mis-  Stainbrunner  v.  Ey.,  146  Pa.  St. 
statement     of     the     evidence,     see      504. 


Sec.  7.]  eddy  v.  gray.  559 

other  person,  she  knows  the  defendant  to  be  the  father.  If  she 
had  connection  with  any  other,  you  may  think  she  does  not 
know,  though  she  may  honestly  believe  the  defendant  to  be  the 
father.  Perhaps,  in  fairness  to  her,  if  no  inquiry  was  made  of 
her  upon  the  subject,  you  may  think  that  her  positive  and  un- 
equivocal declaration  that  he  is  the  father  necessarily  involves 
the  denial  of  intercourse  with  any  other.  But  the  whole  matter 
is  with  you.  You  must  remember  the  evidence.  The  fact  that 
I  do  not  remember  a  piece  of  testimony  is  of  no  importance,  if 
you  remember  it;  and  you  must  be  governed  by  your  recollec- 
tion, and  not  by  mine."  To  these  remarks  the  complainant's 
counsel  excepted  as  being  singular,  and  as  a  charge  upon  the 
facts,  in  violation  of  law. 

The  jury  returned  a  verdict  for  the  defendant,  and  the  com- 
plainant alleged  exceptions. 

Merrick,  j.  *  *  *  There  Avas  no  irregularity  in  the  con- 
duct of  the  trial  by  the  presiding  judge,  or  in  his  charge  to  the 
jary,  which  affords  any  just  ground  of  exception.  It  was  within 
the  province  of  the  court  to  call  their  attention  to  the  evidence 
which  had  been  introduced ;  ^  the  effect  of  it  was  distinctly  sub- 
mitted to  their  consideration  and  judgment.  There  was  no  charge 
upon  any  matter  of  fact,  but  a  mere  allusion  and  reference  to 
the  testimony  which  had  been  laid  before  them.     This  was  in 

1  The  court  may  properly  state  the  testimony ; ' '  and  this  can 
that  there  was  no  direct  evidence  hardly  be  done  without  calling  the 
on  a  given  point,  and  that  circum-  attention  of  the  jury  to  the  degree 
stances  were  relied  on.  Maynard  v.  of  weight  and  importance  to  be  at- 
Tyler,  168  Mass.  107.  Foster,  J.,  taehed  to  particular  facts,  if  they 
in  Durant  v.  Burt,  98  Mass.  161:  are  proved  or  admitted.  To  say  that 
"It  remains  to  consider  the  objec-  certain  circumstances  deserve  to  be 
tion  made  to  the  instruction  that  seriously  considered,  or  are  entitled 
the  fact  that  both  parties  were  to  great  weight,  is  not  expressing  an 
brokers,  and  might  be  presumed  to  opinion  as  to  what  facts  have  been 
know  the  usages  of  their  business,  proved,  but  only  instructing  the 
was  entitled  to  great  weight.  This  jury  with  regard  to  the  relative  ma- 
is  claimed  to  be  a  charge  upon  a  teriality  and  importance  of  differ- 
matter  of  fact  forbidden  by  the  ent  portions  of  the  evidence.  To 
Gen.  Sts.  Chap.  115,  §  5.  This  pro-  assist  and  guide  the  deliberations  of 
vision  of  law  was  considered  in  the  jury  by  such  comments  is  no 
Commonwealth  v.  Barry,  9  Allen,  infringement  upon  their  province, 
276,  and  held  to  prohibit  courts,  in  but  often  a  duty  necessary  to  lead 
charging  juries,  from  expressing  an  their  minds  to  an  enlightened  and 
opinion  as  to  the  credibility  of  wit-  discriminating  consideration  of  the 
nesses.      But   a   judge    may    ' '  state  case. ' ' 


560  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

conformity  to  the  requirements  of  the  provisions  of  the  statute 
upon  the  subject  and  therefore  entirely  unobjectionable.  Gen, 
Sts.,  Chap.  115,  §  5.     *     *     * 


MORRIS  V.  LACHMAN. 

68  California,  109.     [1885.] 

FooTE,  C.  Action  to  recover  damages  for  slander,  in  the 
alleged  speaking  by  Lachman,  of  and  concerning  the  plaintiff 
and  one  Henry  Cavendish,  the  words :  ' '  They  are  horse-thieves 
and  scoundrels." 

The  defendant  filed  a  second  amended  answer,  in  which  the 
main  ground  of  defense  was  stated  to  be,  that  he  believed  his 
horse,  harness  and  wagon  had  been  stolen,  and  did  not  know  the 
persons  who  had  taken  them,  and  that  in  using  the  language 
complained  of  he  had  no  reference  to  the  plaintiff,  but  spoke  it 
of  those  unknown  persons  who  he  honestly  believed  had  com- 
mitted a  larceny  of  his  property.     *     *     * 

At  the  trial  it  was  claimed,  on  the  part  of  the  plaintiff,  that 
the  defendant  used  the  language  set  out  in  the  complaint,  of  and 
concerning  the  plaintiff  and  Mr.  Cavendish,  while  said  Lachman 
was  standing  inside  the  door  of  Messrs.  Lesher  and  Saunders' 
store  in  Oakland,  and  that  plaintiff  and  Mr.  Cavendish  weye 
passing  by  on  the  street  in  front  thereof,  and  that  just  as  they 
went  by  Mr.  Lesher  said  to  the  defendant:  "There  goes  the 
lady  and  gentleman  who  left  the  horse  and  wagon  here,  now." 
To  which  defendant  replied :  "Lady  and  gentleman  be  damned ! 
— they  are  horse-thieves  and  scoundrels."  And  the  plaintiff  in- 
troduced evidence  to  show  the  speaking  of  the  words  by  defend- 
ant as  laid  in  the  complaint.     *     *     * 

As  part  of  the  charge  given  by  the  court  and  excepted  to  by 
the  plaintiff,  after  objection  duly  made,  was  the  following:  "In 
determining  the  question  as  to  whether  the  slanderous  words 
charged  were  spoken  about  or  concerning  the  plaintiff,  it  is 
proper  for  you  to  consider  whether  at  this  time,  when  these 
words  were  alleged  to  have  been  spoken,  Lachman  knew  the 
person  of  the  plaintiff  or  not ;  and  if  he  did  not  know  the  person 
of  the  plaintiff  at  this  time,  how  could  he  have  referred  to  her? 


i 


Sec.  7.]  herkelrath  v.  stookey.  561 

And  how  could  he  have  pointed  her  out  as  the  subject  of  his 
accusation  ? ' ' 

This  is  justly  criticised  as  being  argumentative,  and  instruct- 
ing the  jury  upon  the  weight  of  testimony.  By  it  they  are  in 
effect  told  that  if  the  defendant  did  not  know  the  plaintiff 
personally,  he  could  not  have  referred  to  her  or  pointed  her 
out  as  the  object  of  the  accusation  contained  in  his  language 
which  is  the  matter  of  complaint.  At  least,  it  is  fairly  sus- 
ceptible of  this  construction,  and  may  have  misled  the  jury. 

The  other  portions  of  the  court's  charge  which  are  objected 
to  were  not  improper,  in  view  of  the  declaration  of  this  court 
as  to  the  right  of  the  trial  judge  to  state  the  testimony  given  in 
a  cause  to  a  jury  as  "tending  to  prove"  a  matter.  (People  v. 
Perry,  65  Cal.  568;  People  v.  Vasquez,  49  Cal.  560.) 

For  the  error  committed,  the  judgment  and  order  should  be 
reversed  and  cause  remanded. ^ 


HERKELRATH  v.  STOOKEY. 

63  Illinois,  486.      [1872.] 

Mr.  Chief  Justice  Lawrence  delivered  the  opinion  of  the  court. 

This  was  a  contest  between  the  mortgagees  in  a  chattel  mort- 
gage and  a  creditor  of  the  mortgagor,  and  turned  on  the  validity 
of  the  mortgage.  The  court  instructed  the  jury,  if  the  mortgage 
was  made  to  hinder,  delay  and  defraud  creditors,  it  was  void, 
even  though  the  mortgagees  had  just  claims  against  the  mort- 
gagor. 

The  second  is  objectionable  for  another  reason.  In  that  instruc- 
tion the  jury  are  told,  "if  the  mortgage  was  made  by  a  father 
to  two  of  his  sons,  in  the  night  time,  under  suspicious  circum- 
stances, and  at  the  same  time  the  father  transferred  to  said  sons 
all  his  land  and  personal  property,  and  the  property  in  the  chat- 
tel mortgage  was  subject  to  be  consumed  or  destroyed  in  its  use 
by  the  mortgagor,  these  are  circumstances  from  which  the  jury 
may  infer  that  the  transaction  was  a  fraudulent  one. ' '  ^ 

1  See    also    Eenaud    v.    Bay    City,  instruction  is,  in  reality,  no  instruc- 

124  Mich.  29.  tion  upon  a  question  of  law.    Fraud, 

1  Gamble,    J.,    in    MeDermott    v.  as  a  question  of  fact,  was  presented 

Barnum,  19  Mo  204:  "The  fifth  to  the  jury,  and  this  instruction, 
H.  T.  p.— 3  0 


I 


562 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


The  first  objection  to  this  instruction  is,  that  the  mortgage  was 
not  made  to  the  sons  alone,  but  to  them  and  to  several  other 
persons.  Another  and  fatal  objection  is,  that  while  the  circum- 
stances named  in  the  instruction  may  be  suspicious,  they  do  not 
raise  a  legal  presumption  of  fraud.  They  are  to  be  considered 
in  connection  with  all  the  other  evidence,  and  it  is  for  the  jury 
to  determine,  from  the  entire  evidence,  wiiat  inference  is  to  be 
drawn,  without  being  instructed  by  the  court  as  to  what  weight 
they  are  to  attach  to  any  particular  portion  of  it.  When  the 
court  says  that  a  certain  inference  may  be  drawn  from  certain 
facts,  if  proven,  most  juries  would  understand  the  instruction 
as  meaning  that  it  was  their  duty  to  draw  such  inference.  The 
instruction  would,  at  least,  indicate  that  the  court  thought  it 
highly  proper  the  inference  should  be  drawn.  There  are  cases 
in  which  such  an  instruction  would  not  be  improper,  but  under 
our  system  of  practice  in  this  State,  the  court  should  not  so 
instruct,  except  in  cases  where  the  alleged  circumstances  are  of 
such  a  character  that  the  law  itself  raises  the  presumption.^ 


after  detailing  several  facts,  in- 
forms the  jury  that  if  they  find 
them  to  exist,  they  may  from  them 
infer  that  the  sale  from  Eogers  & 
Co.  to  McDermott  was  fraudulent. 
In  other  words,  the  jury  are  told 
that  certain  circumstances  would 
justify  the  conclusion  that  a  con- 
veyance was  fraudulent  in  fact. 
This  is  more  like  a  summing  up  of 
evidence  than  an  instruction  on  a 
question  of  law.  When  the  law 
presumes  a  fact  from  one  or  more 
other  facts,  the  annunciation  to  the 
jury  of  that  presumption  is  a  dec- 
laration of  the  law  of  the  case,  and 
differs  very  materially  from  telling 
them,  in  a  case  where  there  is  no 
presumption  of  law  to  guide  them, 
that,  if  they  believe  that  certain 
facts  are  proved,  then  they  may 
infer  the  existence  of  the  principal 
fact  in  question.  I  repeat  that  the 
giving  or  refusing  such  an  instruc- 
tion, in  such  a  case,  is  not  properly 
the  decision  of  any  matter  of  law." 


In  South  Carolina  the  constitu- 
tion of  1868  contained  the  famUiar 
provision  that  courts  should  not 
charge  the  jury  in  respect  to  mat- 
ters of  fact,  but  might  state  the 
testimony  and  declare  the  law.  In 
1895  this  section  was  amended  to 
read :  ' '  Judges  shall  not  charge 
juries  in  respect  to  matters  of  fact, 
but  shall  declare  the  law. ' '  In 
Morris  v.  Clinkscales,  47  S.  C.  488, 
after  an  elaborate  review  of  the 
practice  at  common  law,  and  under 
the  constitution  of  1868,  it  was  held 
that  the  amendment  of  1895  im- 
pliedly took  away  the  power  to  state 
the  testimony,  and  limited  the  court 
to  a  statement  of  the  law  as  applied 
to  hypothetical  facts. — Ed. 

2  Barclay,  J.,  in  Moberly  v.  Ey., 
98  Mo.  183:  "The  instructions 
given  by  the  court  were  in  the  main 
accurate,  but  certain  errors,  never- 
theless, crept  into  them,  requiring  a 
reversal  of  the  judgment.  Instruc- 
tion   numbered    5,    given    at    plain- 


Sec.  7.]  knowles  v.  nixon.  563 

Where  one  party  proves  certain  facts  which  the  other  attempts 
to  explain  or  overcome  by  the  proof  of  certain  other  facts,  the 
jury  should  be  left  to  draw  their  own  inferences,  without  any 
intimation  from  the  court  as  to  what  it  would  be  proper  to  infer 
from  the  evidence  of  either  side. 

The  judgment  of  the  court  below  is  reversed  and  the  cause 
remanded. 

Judgment  reversed. 


KNOWLES  V.  NIXON. 

17  Montana,  473.     [1896.] 

Pemberton,  C.  J.  This  is  an  action  to  recover  a  balance 
alleged  to  be  due  on  a  promissory  note.  The  answer  admits  the 
execution  of  the  note,  but  pleads  payment.  The  case  was  tried 
with  a  jury,  and  a  verdict  returned  for  the  plaintiff  in  the  sum 
of  $231.15.  From  the  judgment  rendered  thereon,  and  the  order 
of  court  denying  a  motion  for  a  new  trial,  the  defendant  appeals. 

The  assignment  of  error  principally  relied  upon  by  the  ap- 
pellant is  the  giving  of  the  following  instruction  by  the  court : 
"The  court  instructs  the  jury  that  although  parol  proof  of  the 
verbal  admissions  of  a  party  to  a  suit,  when  it  appears  that  the 
admissions  were  understandingly  and  deliberately  made,  often 

tiff's  instance,  should  not  have  told  sumption  would  be  in   all  cases  er- 

the  jury  that  the  law  presumed  that  roneous.      But    we    are    of    opinion 

plaintiff     exercised     ordinary     care  that,    on    the    facts    presented,    it 

while  submitting  the  question  of  his  should    not    have    been    made    here, 

care  or  negligence  as  an  issue.     The  Where  there  is  evidence  tending  to 

presumption  that  everyone  exercises  remove  the  presumption  a  reference 

ordinary    care    obtains    in    the    ab-  to     the     latter     is     usually     to     be 

sence   of   evidence   to    the   contrary.  avoided.      This   case   is   a   close   one 

But    there    was    abundant    evidence  on   the  issue   of   contributory  negli- 

f  rom  which  plaintiff  's  negligence  on  genee.     Though  there  was  sufficient 

the  occasion  in  question  might  have  evidence    to    support    a   verdict    for 

been   fairly  found.     With  that  evi-  plaintiff,  the  jury  should  have  been 

dence    before    them,    it    was    calcu-  left   to   make   such   finding  as   they 

lated  to  give  the  jury  a  wrong  im-  considered  just,  on  that  issue,  with- 

pression  of  its  effect  to  say  that  a  out  easting  into  the  balance  such  a 

presumption  of  care  then  existed  in  reference    to    the    presumption    ob- 

plaintiff  's   favor.      We   do   not  hold  taining  in  the  absence  of  evidence. ' ' 
that  a  reference  to  a  disputable  pre- 


564  CONDUCT   OF   THE   TRIAL.  [ChaP.    IV. 

affords  satisfactory  evidence,  yet,  as  a  general  rule,  the  state- 
ments of  a  witness  as  to  verbal  admissions  of  a  party  should 
be  received  by  a  jury  with  caution,  as  that  kind  of  evidence  is 
subject  to  much  imperfection  and  mistake.  The  party  himself 
may  have  been  misinformed,  or  may  not  have  clearly  expressed 
his  meaning,  or  the  witness  may  have  misunderstood  him ;  and  it 
frequently  happens  that  the  witness,  by  unintentionally  altering 
a  few  of  the  expressions  really  used,  gives  an  effect  to  the  state- 
ment completely  at  variance  with  what  the  party  did  actually 
say.  If  it  appears  to  the  jury,  from  the  circumstances  proved, 
that  the  party  himself  may  have  been  misinformed,  or  may  not 
have  expressed  his  own  meaning  clearly  and  understandingly, 
or  that  the  witness  may  have  misunderstood  him,  or  that  the 
witness  had  no  reason  or  motive  for  remembering  the  exact  lan- 
guage used,  or  where,  for  a  lapse  of  time,  or  any  other  reason, 
the  jury  can  see  that  the  witness  is  liable  to  be  mistaken,  or 
unable  to  give  the  exact  words  really  used  by  the  party,  or  their 
equivalents,  these  matters  should  be  considered  by  the  jury  in 
determining  the  weight  to  be  given  to  the  testimony. ' ' 

This  instruction  is  substantially  like  the  instruction  com- 
mented on  with  disapproval  by  this  court  in  Wastl  v.  Railway 
Co.,  ante,  p.  213.  The  instruction  is  evidently  taken  from  Kauff- 
man  v.  Maier,  94  Cal.  269,  29  Pac.  481.  The  California  court 
held  it  to  be  erroneous,  not  only  because  in  violation  of  the 
constitution  of  the  state,  but  because  it  "is,  in  substance,  an 
argument  to  the  jury  with  respect  to  matters  of  fact  that  had 
been  presented  at  the  trial,  and  a  comment  by  the  court  upon 
the  weight  which  they  should  give  to  the  testimony. ' '  The  court 
further  said:  "Whether  the  facts  and  circumstances  proved  in 
the  case  were  sufficient  to  cause  the  reason  of  the  jury  to  make 
this  inference,  was  fair  matter  of  argument  for  the  counsel  of  the 
respective  parties,  but  the  court  forsook  its  judicial  position  when 
it  assumed  the  office  of  commenting  upon  the  weight  and  credi- 
bility of  this  evidence.  The  closing  paragraph  in  this  instruc- 
tion, to  the  effect  that  it  was  for  the  jury  to  give  to  the  evidence 
the  consideration  to  which  it  was  entitled,  did  not  obviate  the 
error,  as  by  its  remarks  the  court  had,  in  substance,  said  to  them 
that,  as  a  matter  of  law,  the  evidence  was  not  entitled  to  any  great 
consideration." 

The  only  issue  in  the  ease  was  whether  the  note  sued  on  had 
been  fully  paid.     The  court  instructed  the  jury  that  the  burden 


Sec.  7.]  feary  v.  metropolitan  ry.  co.  565 

oi"  proving  this  issue  devolved  upon  the  appellant.  The  ap- 
pellant swore  positively  to  the  payment.  The  respondent  testi- 
fied positively  the  other  way.  The  only  corroborating  evidence 
the  appellant  had  as  to  payment  was  the  testimony  of  three  or 
four  witnesses  that  the  respondent  had  admitted  to  them  that 
appellant  had  paid  the  note.  In  this  view  of  the  case,  the 
appellant  was  entitled  to  have  the  admissions  of  the  respondent 
as  to  the  payment  of  the  note  go  to  the  jury  for  what  they  were 
worth  in  law  and  fact.  The  law  does  not  attach  slight  weight, 
or  treat  as  a  matter  of  little  or  doubtful  significance,  the  voluntary 
admissions  of  a  party  against  his  own  interest.  The  comment 
and  argument  of  the  court  contained  in  the  instruction  com- 
plained of  were  calculated  to  cause  the  jury  to  attach  little  weight 
or  significance  to  the  admissions  of  respondent  shown  by  the 
evidence.  This  was  calculated  to  prejudice  the  appellant.  Under 
our  law,  it  is  error  for  the  court  to  comment,  or  make  an  argu- 
ment, in  the  instructions,  on  the  weight  to  be  given  to  the  testi- 
mony by  the  jury. 

The  appellant  contends  that  the  evidence  is  insufficient  to 
support  the  verdict.  There  is  a  conflict  in  the  evidence,  and, 
as  that  was  a  matter  properly  within  the  province  of  the  jury 
to  determine  and  settle,  we  do  not  feel  that  we  would  be  author- 
ized to  disturb  the  result  on  the  ground  of  the  insufficiency  of  the 
evidence  to  support  it. 

On  account  of  the  error  of  the  court  in  giving  the  instruction 
treated  above,  the  judgment  and  order  appealed  from  are  re- 
versed, and  the  cause  remanded  for  new  trial. 

Eeversed.^ 


FEARY  v.  METROPOLITAN  RY.  CO. 

162  Missoiiri,  75.     [WOl.] 

Marshall,  J.  This  is  an  action  for  $50,000  damages  for 
personal  injuries  received  by  the  plaintiff  on  the  27th  of  July, 
1896.  The  suit  was  begun  in  Jackson  county,  the  venue  changed, 
at  plaintiff's  instance,  to  Lafayette  county,  and  resulted  in  a 

1  Accord — Kaufman  v.  Maier,  94  Ga.  424  (semble) ;  Gass  v.  Steiger, 
Gal.  269;  Johnson  v.  Stone,  69  Miss.  148  Gal.  155  (semble).  Contra— 
826;   Phoenix  Ins.  Co.  v.  Gray,  113       Nash  v.  Hoxie,  59  Wis.  384. 


566  CONDUCT   OF   THE   TRIAL.  [ChaP.    IV. 

verdict  and  judgment  for  the  defendant,  from  which  plaintiff 
appealed.     *     *     * 

The  defendant's  ninth  instruction  is: 

"The  plaintiff,  Feary,  was  a  witness  in  his  own  behalf;  the 
jury  are  the  sole  judges  of  his  credibility ;  all  statements  made 
by  him,  if  any,  which  are  against  his  own  interest,  must  be  taken 
as  true ;  but  his  statements  in  his  own  favor  are  only  to  be  given 
such  credit  as  the  jury  under  all  the  facts  and  circumstances  in 
evidence  deem  them  entitled  to." 

It  is  admitted  that  a  similar  instruction  was  held  to  be  proper 
in  a  criminal  case.  (State  v.  Brooks,  99  Mo.  137.)  But  it  is 
insisted  that  it  is  error  to  give  it  in  a  civil  case.  No  good  reason 
for  such  a  distinction  occurs  to  the  legal  mind.  Admissions  made 
in  court,  in  the  testimony  of  a  party,  have  the  same  effect  as 
if  made  in  the  pleadings,  and  admissions  in  a  pleading  are  taken 
as  true  for  the  purposes  of  the  action.  (Shirts  v.  Over  John, 
60  Mo.  308;  Wright  v.  Town  of  Butler,  64  Mo.  165.)  State- 
ments against  interest  are  called  admissions  in  civil  cases,  and 
confessions  in  criminal  ones.  They  are  taken  as  true  for  the 
purposes  of  the  case,  because  no  man  would  make  them  if  they 
were  not  true.  If  confessions  are  enough  to  hang  a  man  or  to 
send  him  to  the  penitentiary  under  the  criminal  statutes,  it  is 
hard  to  see  why  admissions  should  not  be  enough  to  conclude  him 
in  a  civil  suit.  Greenleaf  on  Evidence  (16th  Ed.),  §  170,  says: 
"The  rules  of  evidence  are  in  both  cases  the  same." 

In  Payne  v.  Railroad,  30  S.  AV.  Rep.  150,  speaking  to  a 
similar  instruction,  Macparlane,  J.,  said :  "  He  is  conclusively 
bound  by  every  declaration  and  admission  against  his  interest 
made  while  testifying  before  the  court  and  jury.  (State  v. 
Brooks,  99  Mo.  142,  and  cases  cited.)  "  i     *     *     * 

Valliant,  J.,  dissenting.  *  *  *  Defendant's  ninth  in- 
struction is:  "The  plaintiff  Feary  was  a  witness  in  his  own 
behalf ;  the  jury  are  the  sole  judges  of  his  credibility ;  all  state- 
ments made  by  him,  if  any,  which  are  against  his  interest,  must 
be  taken  as  true;  but  his  statements  in  his  own  favor  are  only 
to  be  given  such  credit  as  the  jury  under  all  the  facts  and  cir- 
cumstances in  evidence  deem  them  entitled  to. ' ' 

This  instruction  is  inconsistent  in  its  own  terms.  It  first 
informs  the  jury  that  they  are  the  sole  judges  of  the  credibility 

1  See  also  Conner  v.  E7.,  181  Mo. 
397. 


Sec.  7.]  feary  v.  metropolitan  ry.  go.  567 

of  the  particular  witness,  and  then  undertakes  to  control  them 
in  that  respect.  It  informs  them,  in  effect,  that  whatever  the 
witness  may  have  said  against  his  own  interest,  whether  casually 
or  deliberately,  lightly  or  solemnly,  the  jury  must  take  as  abso- 
lutely true,  but  they  must  beware  of  him  when  he  speaks  iu 
his  own  behalf. 

An  instruction  of  this  kind  has  upon  several  occasions  been 
approved  by  this  court  in  a  criminal  case,  but  it  has  never  had 
the  unanimous  approval  of  the  court.  In  State  v.  Young,  99 
Mo.  666,  Judge  Sherwood  demonstrated  that  the  giving  of  such 
an  instruction  is  an  invasion  of  the  province  of  the  jury  and 
forbidden  by  law.  The  jury  are  the  sole  judges  of  the  credi- 
bility of  the  witnesses,  and  the  court  has  no  right  to  single  out 
one  and  lay  down  rules  for  the  jury  to  ascertain  what  weight 
they  ought  to  give  his  evidence.  But  the  majority  of  the  court 
held  in  that  case  that  the  instruction  was  right,  and  that  deci- 
sion seems  to  have  been  grounded  on  the  statute  which,  while 
it  removed  the  common-law  disability  of  the  accused  and  the 
husband  and  wife  of  the  accused  in  a  criminal  case  to  testify 
in  his  or  her  behalf,  provided  ' '  such  facts  may  be  shown  for  the 
purpose  of  affecting  the  credibility  of  such  witness. ' '  The  learned 
judge,  just  mentioned,  pointed  out  that  that  provision  of  the 
statute  was  only  intended  to  allow  the  State  to  show  in  evidence 
that  the  witness  was  the  husband  or  wife  of  the  accused  as  a  fact 
for  their  consideration,  but  it  did  not  authorize  the  court  to 
call  that  fact  to  the  attention  of  the  jury  in  an  instruction  and 
comment  on  it.  The  decision  in  that  case  has  been  followed  in 
other  criminal  cases,  and  perhaps  it  is  now  to  be  regarded  as 
settled.  But  this  is  the  first  instance  within  my  observation  in 
which  such  an  instruction  has  been  before  this  court  in  a  civil 
case,  and  whilst  I  am  free  to  confess  that  I  see  no  essential  prin- 
ciple upon  which  it  could  be  held  inapplicable  to  a  civil,  if 
applicable  to  a  criminal  case,  unless  it  be  that  the  temptation 
to  shield  one's  self  or  one's  wife  or  husband  by  perjury  from 
the  consequences  of  conviction  of  crime,  is  greater  than  that 
under  the  influence  of  mere  pecuniary  interest,  yet  I  am  un- 
willing to  sanction  the  extension  of  the  field  in  which  such  an 
instruction  may  be  used.  The  instruction  was  harmless  in  this 
case,  but  it  should  not  be  approved  for  a  precedent. 


568  CONDUCT    OF    THE    TRIAL.  [ChAP.    IV. 

ROCKWOOD  V.  POUNDSTONE. 

38  Illinois,  199.      [1865.] 

Mr.  Justice  Breese  delivered  the  opinion  of  the  court. 
This  was  an  action  of  trespass  quare  clausum  fregit  brought 
by  defendant  in  error  against  the  plaintiff  in  error.     The  general 
issue,  alone,  was  pleaded,  and  verdict  for  the  plaintiff.     Motion 
for  a  new  trial  was  overruled  and  judgment  on  the  verdict. 

It  was  admitted  on  the  trial  that  the  plaintiff  was,  at  the  time 
of  the  alleged  trespass,  in  possession  of  the  southwest  quarter  of 
section  two,  and  of  the  northwest  quarter  of  section  eleven,  town- 
ship thirty-two  north,  range  three,  and  that  the  defendant  tore 
down  one  hundred  and  sixty  rods  of  fence,  claimed  by  the 
plaintiff  to  be  upon  the  west  line  of  said  section  two,  and  twenty 
rods  of  fence  claimed  to  be  upon  the  west  line  of  said  section 
eleven,  but  claimed  by  defendant  to  have  been  wholly  upon  the 
southeast  quarter  of  section  ten,  each  of  which  last  named  tracts, 
it  was  admitted,  were  then  in  the  possession  of  Eockwood. 

The  dispute  is  as  to  the  location  of  the  line  between  sections 
two  and  three  and  ten  and  eleven,  as  established  by  the  United 
States  surveyor.  The  proofs  show  that  the  township  of  Farm 
Ridge,  in  which  the  lands  are  situate,  was,  in  the  first  instance, 
very  Imdly  surveyed  by  the  government  surveyor,  rendering  it 
very  difficult,  half  a  century  clasped  since  the  survey,  to  find  a 
government  corner,  so  called.  IMuch  testimony  was  heard  on 
both  sides  on  this  point  and  several  practical  surveyors  were 
examined.  We  have  considered  the  testimony  carefully,  but  do 
not  deem  it  necessary  to  discuss  it,  as  our  attention  has  been 
more  particularly  called  to  the  law  of  the  ease,  as  laid  down  by 
the  court  in  the  instructions. 

It  is  insisted  by  the  appellant  that  the  court  erred  in  giving 
the  seventh  and  ninth  instructions  for  the  plaintiff.  The  seventh 
is  as  follows :  The  affirmative  testimony  of  a  witness  to  a  cer- 
tain fact,  as  for  instance,  that  he  saw  a  government  mound  and 
ditch  at  a  certain  point,  may  be  regarded  by  the  jury  as  stronger 
proof  than  the  testimony  of  a  witness  who  swears  that  he  did 
not  see  such  a  mound  and  ditch. 

"We  do  not  understand  it  is  the  province  of  the  court  to  tell 
the  jury  in  a  case  where  there  is  much  and  conflicting  testimony, 


Sec.  7.]  kavanaugh  v.  city  of  wausau.  569 

or  indeed  in  any  case,  which  evidence  is  the  strongest.^  It  is 
not  true  that  affirmative  testimony  is  to  be  preferred  before 
negative  testimony,  so  called,  under  all  circumstances,  and  that 
is  the  purport  of  this  instruction,  and  was  calculated  to  bias 
the  mind  of  the  jury  very  much.  The  value  of  all  testimony  is 
to  be  ascertained  by  the  jury  by  weighing  it,  and  to  find  which- 
ever way  it  may  preponderate.  This  instruction  should  not 
have  been  given.     *     *     * 


KAVANAUGH  v.  CITY  OF  WAUSAU. 

120  Wisconsin,  611.     [1904.] 

Marshall,  j.  *  *  *  The  instruction  requested,  to  the 
effect  that  in  judging  of  the  credibility  of  plaintiff's  evidence 
the  jury  might  properly  consider  his  interest  in  the  result  of 
the  trial,  the  temptation  under  the  circumstances  to  color  his 
testimony  favorably  to  himself,  and  everything  bearing  on  the 
subject,  and  give  such  evidence  such  weight  only  as  in  their 
judgment  it  was  entitled  to,  and  that  a  like  test  should  be 
applied  to  evidence  of  each  of  the  witnesses  who  testified  in  the 
case,  was  a  correct  statement  of  a  legal  principle.  It  was  not 
only  proper  for  the  jury  to  consider  the  interest  of  plaintiff 
in  the  result  of  the  trial,  and  every  other  circumstance  appear- 
ing in  the  case  reasonably  calculated,  in  any  view  thereof,  to 
throw  light  upon  its  credibility  and  weight,  and  to  subject  the 
evidence  of  each  witness  who  testified  to  a  like  test,  but  it  Avas 
their  duty  to  do  so;  and  the  instruction  might  properly  have 
been  framed  so  as  not  to  convey  the  idea  to  the  jury  that  it  was 
competent  for  them,  in  their  discretion,  to  omit  such  test.  The 
instruction  being  correct  in  principle  applicable  to  the  case — 
peculiarly  so  since  a  decision  in  respondent's  favor  depended 
largely  upon  the  weight  to  be  given  to  his  evidence — and  such 
principle  not  being  in  any  respect  embodied  in  the  general  charge, 
prejudicial  error  was  committed  in  refusing  it.  Framed  as  it 
was,  so  as  to  indicate  to  the  jury  that  the  evidence  of  each  wit- 
ness should  be  subjected  to  the  same  test  as  the  one  applied  to 
that  of  the   plaintiff  in   determining  the   weight  to  be   given 

1  And  so  in  Ey.  v.  Brooks,  81  111. 
245;  Ey.  v.  Shires,  108  111.  617. 


% 


570  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

thereto,  it  did  not  invade  the  province  of  the  jury  or  violate  the 
rule  that  the  evidence  of  one  witness  should  not  be,  in  the  in- 
structions, singled  out  and  given  prominence  by  special  comment 
thereon.i  Chicago  &  A.  R.  Co.  v.  Anderson,  166  111.  572,  46 
N.  E.  1125;  Pennsylvania  Co.  v.  Versten,  140  111.  637,  30  N.  E. 
540 ;  McDonell  v.  Rifle  Boom  Co.,  71  Mich.  61,  38  N.  W.  681 ; 
People  V.  Knapp,  71  Cal.  1,  11  Pac.  793. 

By  the  court:     The  judgment  is  reversed,  and  the  cause  re- 
manded for  a  new  trial. 


RAY  V.  WOOTERS. 
19  Illinois,  82.     [1857.] 

This  was  a  trial  in  the  Circuit  Court  of  an  action  for  slander. 
There  was  a  verdict  and  judgment  in  favor  of  the  plaintiff  be- 
low for  two  hundred  and  seventy-five  dollars.  The  bill  of  excep- 
tions states  that  the  court  gave  the  instructions  as  modified — 
"Thereupon  the  court  proceeded  orall}^  to  explain  and  qualify 
said  instructions  to  the  jury."  The  cause  was  tried  before 
Breese,  Justice,  and  a  jury,  at  September  term,  1857,  of  the 
Marion  Circuit  Court. 

Skinner,  J.  The  court,  after  giving,  at  the  instance  of  the 
defendant  below,  several  instructions  in  writing,  as  the  bill  of 
exceptions  states,  ' '  proceeded  orally  to  explain  and  qualify  said 
instructions  to  the  jury."  The  statute  provides:  "That  here- 
after no  judge  of  the  Circuit  Court  shall  instruct  the  petit  jury, 
in  any  case,  civil  or  criminal,  unless  such  instructions  are  re- 
duced to  writing" — "and  he  shall  in  no  case,  after  instructions 
are  given,  orally,  qualify,  modify  or  in  any  manner  explain  the 
same  to  the  jury."     Statutes  1856,  829. 

This  statute  plainly  inhibits  the  Circuit  Courts  from  changing 
or  in  any  measure  affecting  orally  the  law  as  stated  in  written 
instructions  given ;  and  in  a  case  of  so  clear  intention  of  the  law- 
making power,  there  is  no  room  by  construction  to  avoid  conse- 
quences, however  inconvenient  in  practice,  or  detrimental  to  the 
administration  of  justice. 

The  law  being  so  written,  the  courts  must  submit  to  and  abide 

1  For  the  usual  instruction  cover-  credibility,  see  Wright  v.  Kansas 
ing    the    various    matters    affecting      City,  187  Mo.  678, 


Sec.  7.]  ford  v.  lacy.  571 

the  mandate,  and  trust  to  the  wisdom  of  the  legislature  for  such 
change  as  experience  may  suggest.  It  is  true,  it  does  not  appear 
what  the  oral  explanations  and  qualifications  were ;  yet  the  words 
import  a  modification,  limitation,  restriction  or  construction  of 
the  written  instructions,  and,  therefore,  a  change  in  some  degree 
of  the  law  as  stated  in  writing.     This  is  plainly  forbidden,  i 

We  presume  the  court  did  not  intend,  without  consent  of  the 
parties,  in  any  material  matter  of  law,  to  orally  instruct  the 
jury;  but  from  the  language  of  the  bill  of  exceptions,  we  can 
treat  the  case  only  in  the  light  before  stated ;  although  upon  the 
argument  it  is  conceded  that  the  explanations  so  orally  given 
were  in  fact  immaterial. 

Judgment  reversed  and  cause  remanded. 

Judgment  reversed. 


(c)  Requests  and  Exceptions. 

FORD  V.  LACY. 

7  Eurlstone  &  Norman,  151.     [1861.] 

Declaration.  That  the  defendant  broke  and  entered  certain 
land  of  the  plaintiff's,  situate  at  AValthamstow  in  the  County  of 
Essex,  abutting  towards  the  north  and  east  on  the  River  Lea; 
towards  the  west,  on  land  in  the  possession  of  the  defendant,  etc., 
and  cut  grass  there,  etc. 

Pleas.  First,  not  guilty.  Secondly,  not  possessed.  Thirdly, 
that  the  close  was  the  land  and  freehold  of  T.  Beale,  and  that  the 
defendant,  as  the  servant  and  by  the  command  of  T.  Beale,  com- 

1  Compare  Cole,  J.,  in  Millard  v.  the  question  of  a  juror  was  a 
Lyons,  25  Wis.  516:  "After  the  'charge,'  within  the  meaning  of 
circuit  judge  had  charged  the  jury  chap.  101,  Gen.  Laws  of  1868,  and, 
upon  the  law  of  the  ease,  one  of  the  not  having  been  reduced  to  writing, 
jury  asked  him  'whether  the  plain-  should  reverse  the  judgment.  The 
tiff  had  the  right  to  use  the  de-  word  'charge,'  as  used  in  that  stat- 
fendant's  divided  grain  to  feed  the  ute,  was  not  intended  to  include  any 
stock  and  sheep. '  The  circuit  judge  and  every  question  and  answer  pass- 
answered  that  he  would  not  have  ing  between  the  court  and  jury.  It 
the  right  by  law.  It  is  now  insisted  doubtless  refers  to  the  address  made 
on  the  part  of  the  defendant  that  by  the  judge  after  the  case  has  been 
this  answer  by  the  circuit  judge  to  closed,  when  he  comments  upon  the 


572  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

mitted  the  trespasses  complained  of.  Fourthly,  that  before  the 
alleged  trespasses  T.  Beale  being  seized  in  fee  of  the  said  land 
demised  the  same  to  the  defendant  for  a  term  not  yet  expired,  by 
virtue  whereof  the  defendant  entered  upon  the  land  and  became 
possessed  thereof  for  the  term,  whereupon  the  defendant  in  his 
own  right  during  the  term  committed  the  trespasses. 

The  plaintiff  took  issues  on  the  pleas. 

At  the  trial,  before  Wightman,  J.,  at  the  last  assizes  for  the 
County  of  Essex,  it  appeared  that  the  action  was  brought  for  a 
trespass  on  certain  narrow  slips  of  land  situate  on  the  Middlesex 
side  of  the  River  Lea,  and  which  had  originally  formed  part  of 
its  bed  but  had  been  left  dry.  There  was  evidence  that  the  River 
Lea  had  been  the  boundary  of  the  County  of  Essex  and  of  the 
parish  of  Walthamstow,  and  that  the  whole  of  the  bed  of  it  was 
in  that  county  and  parish.     *     *     * 

The  defendant 's  case  was,  that  the  land  belonged  to  Beale  and 
that  it  was  in  Middlesex.  He  contended  that,  though  the  River 
Lea  might  change  its  course,  in  law  it  continued  to  be  the 
boundary  of  the  two  counties.  He  put  in  the  Edmonton  En- 
closure act,  40  Geo.  3  (not  printed),  and  the  award  of  the 
commissioners  made  under  it  in  1804,  showing  that  the  allotment 
to  Beale  extended  to  the  river  side.  "Witnesses  called  by  the 
defendant  said  that  the  river  was  the  boundary  of  the  County 
of  Middlesex ;  and  an  old  map  of  Essex  was  produced  showing  the 
river  as  the  boundary  of  the  County  of  Essex.  The  witnesses 
said  that  the  cattle  on  the  meadow  had  always  grazed  over  the 
land,  but  did  not  deny  that  the  plaintiff  had  mowed  the  grass 
every  year  for  fifty  years. 

The  learned  judge  left  it  to  the  jury  to  say :  First,  whether 
the  pieces  of  land  were  in  the  County  of  Essex?  Secondly, 
whether  they  were  in  the  parish   of  Walthamstow?     Thirdly, 

testimony,   or  instructs   the  jury  in  The   judgment   of   the  circuit   court 

any  matter  of  law  arising  upon  it.  must  be  affirmed." 

Suppose  the  circuit  judge  had  an-  In  the  absence  of  such  statutes, 

swered   the    question  by  the   mono-  the  court  may  instruct  orally,  or  in 

syllable  'no,'  which,  indeed,  was  all  writing,  in  its  discretion.     Smith  v. 

his  answer  amounted  to.     Will  it  be  Crichton,   33  Md.   103. 

claimed  that  before  he  could  answer  The     statute     is     not     sufficiently 

he   must  write   the   word   'no,'   and  complied    with    by    writing    out    a 

then  read  it  to  the  jury?     We  think  charge   after   it   has   been   delivered 

it  quite  safe  to  say  that  the  statute  orally.    Dixon  v.  State,  13  Fla.  636. 

never  contemplated  any  such  thing. 


Sec.  7.]  ford  v.  lacy.  573 

whether  they  were  in  the  possession  of  the  plaintiff?  Fourth- 
ly, whether  they  were  the  property  of  Beale,  the  defendant's 
landlord  ?  Plis  lordship  stated  at  the  same  time  that  the  answer 
to  the  last  question  would,  in  the  judgment  of  the  jury,  probably 
depend  on  the  acts  of  ownership  exercised  by  the  defendant's 
landlord,  which  were  consistent  with  and  probably  showed  the 
existence  of  a  right  of  common.  The  jury  having  answered  the 
three  former  questions  in  the  affirmative,  and  the  last  in  the 
negative,  the  verdict  was  entered  for  the  plaintiff. 

Lush,  in  Easter  term,  obtained  a  rule  for  a  new  trial,  on  the 
ground  that  the  learned  judge  ought  to  have  directed  the  jury 
that  land  left  by  a  river  becomes  part  of  the  adjoining  property 

and  county.  He  referred  to  Sehultes  on  Aquatic  Rights,  p.  138. 
*     #     * 

Bramwell,  B.  I  do  not  dissent  from  any  of  the  propositions 
of  law  stated  by  ]\Ir.  Clarke.  For  myself  I  am  inclined  to  think 
that  this  was  in  fact  a  case  of  gradual  accretion,  where  the  land 
ought  to  have  belonged  to  the  defendant's  landlord.  Possibly 
there  were  considerations  which  showed  that  it  did  not.  Mr. 
Clarke  is  right  when  he  says  that  the  adjoining  owner  is  entitled 
to  the  benefit  of  gradual  accretions.  But  he  fails  to  show  that 
there  was  any  misdirection.  A  judge  is  not  bound  to  submit 
every  perplexing  point  to  the  jury,  and  in  case  of  non-direction 
we  are  only  bound  to  interfere  when  the  verdict  is  against  evi- 
dence, and  part  of  the  explanation  of  the  miscarriage  is  tliat 
the  judge  omitted  to  direct  the  jury  properly.  But  the  rule  is 
not  moved  on  the  ground  that  the  verdict  is  against  evidence. 
Therefore,  without  saying  that  I  am  satisfied  with  the  verdict, 
or  that  the  defendant  ought  not  to  have  succeeded ;  without  say- 
ing that  it  would  not  have  been  better  that  the  learned  judge 
should  have  adverted  more  fully  to  the  law  of  accretion,  I 
think  that  the  direction  was  sufficient,  and  therefore  the  rule 
must  be  discharged. 

Channel,  B.  I  agree  that  the  rule  must  be  discharged.  If 
T  am  at  liberty  to  review  the  evidence,  I  cannot  say  that  I  think 
it  was  all  one  way.  But  it  is  not  necessary  to  do  that,  because 
the  rule  was  not  moved  on  the  ground  that  the  verdict  was 
against  evidence.  As  to  the  ground  of  misdirection,  four  ques- 
tions were  left  to  the  jury.  In  a  certain  sense  the  question  of 
imperceptible  accretion  was  properly  left  to  the  jury,  and  they 
must  have  considered  it.     It  is  said  that  it  was  a  misdirection 


574  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

of  the  learned  judge  not  to  have  stated  the  law  more  fully  to  the 
jury.  But  I  agree  with  my  brother,  Bramw^ell,  that  before  set- 
ting aside  the  verdict  on  that  ground,  we  ought  to  see  that  the 
jury  have  formed  a  wrong  estimate  of  the  value  of  the  evidence 
in  consequence  of  the  omission.  But  I  am  not  prepared  to  say 
that  the  verdict  was  wrong;  and  I  entirely  agree  that  the  rule 
as  to  the  property  in  the  soil  of  private  rivers,  is  that  laid  down 
by  Lord  Hale  in  the  passages  cited  by  my  brother,  Martin, 

Rule  discharged. 


TEXAS  AND  PACIFIC  RY.  CO.  v.  VOLK. 

151  U.  S.  73.      [1894.] 

This  was  an  action  against  a  railroad  corporation  incorporated 
by  act  of  Congress,  to  recover  for  personal  injuries.     *     *     * 

The  court  overruled  the  exception  that  the  petition  did  not 
show  that  the  plaintiff  was  without  fault  or  negligence.  The 
defendant,  thereupon,  in  support  of  the  answer  setting  up  con- 
tributory negligence  of  the  plaintiff,  "introduced  evidence  tend- 
ing to  show  that  at  the  time  of  accident  the  plaintiff  was  on  top 
of  the  car  from  which  he  was  thrown,  and  walking  upright  with 
his  face  towards  the  approaching  engine ;  and  further  evidence 
tending  to  show  that  the  car  upon  which  plaintiff  was  at  work 
was  separated  from  certain  other  cars  on  said  track  by  an  open 
space  of  fifty  or  sixty  feet,  and  that  the  engine  in  motion  ran 
against  and  struck  certain  other  cars  on  said  side  track,  pushed 
them  over  this  intervening  space,  and  ran  them  against  the  car 
upon  which  plaintiff  had  been  at  work.  But  the  court  did  not 
charge  upon  contributory  negligence ;  to  which  the  defendant 
excepted."     *     *     * 

Mr.  Justice  Gray,  after  stating  the  ease,  delivered  the  opinion 
of  the  court. 

By  the  settled  law  of  this  court,  not  controverted  at  the  bar, 
contributory  negligence  on  the  part  of  the  plaintiff  need  not  be 
negatived  or  disproved  by  him,  but  the  burden  of  proving  it  is 
upon  the  defendant.  Inland  &  Seaboard  Co.  v.  Tolson,  139 
U.  S.  551,  557.  The  omission  of  the  court  to  instruct  the  jury 
upon  the  subject  of  the  plaintiff's  contributory  negligence  is  not 
open  to  exception,  because  the  bill  of  exceptions  does  not  show 


Sec.  7.]  stumps  v.  kelley.  575 

that  the  defendant  requested  any  instruction  upon  that  subject. 
In  England  it  is  a  misdirection,  and  not  non-direction,  which  is 
the  subject  of  a  bill  of  exceptions.  Anderson  v.  Fitzgerald,  4 
H.  L.  Cas.  484,  499.  In  this  country,  the  rule  is  somewhat  more 
liberal ;  and  the  not  giving  an  instruction  upon  a  point  in  issue 
may  be  excepted  to,  if  one  was  requested,  but  not  otherwise.  In 
a  very  early  case,  Chief  Justice  Marshall  said:  "There  can  be 
no  doubt  of  the  right  of  a  party  to  require  the  opinion  of  the 
court  on  any  point  of  law  which  is  pertinent  to  the  issue,  nor 
that  the  refusal  of  the  court  to  give  such  opinion  furnishes  cause 
for  an  exception."  Smith  v.  Carrington,  4  Cranch.  62,  71.  As 
afterwards  more  fully  stated  by  Mr.  Justice  Story,  "it  is  no 
ground  of  reversal  that  the  court  below  omitted  to  give  directions 
to  the  jury  upon  any  points  of  law  which  might  arise  in  the 
cause,  when  it  was  not  requested  by  either  party  at  the  trial. 
It  is  sufficient  for  us  that  the  court  has  given  no  erroneous  direc- 
tions. If  either  party  deems  any  point  presented  by  the  evidence 
to  be  omitted  in  the  charge,  it  is  competent  for  such  party  to 
require  an  opinion  from  the  court  upon  that  point.  If  he  does 
not,  it  is  a  waiver  of  it."  Pennock  v.  Dialogue,  2  Pet.  1,  15. 
See  also  Express  Co.  v.  Kountze,  8  Wall.  342,  353,  354 ;  Shutte 
V.  Thompson,  15  Wall.  151,  164.  A  request  for  instructions,  be- 
ing necessary  to  entitle  the  excepting  party  to  avail  himself  of 
an  omission  to  instruct,  cannot  be  presumed,  but  must  affirma- 
tively appear  in  the  bill  of  exceptions. 

The  writ  of  error  appears  to  this  court  to  have  had  no  plausible 
ground  to  support  it,  and  to  have  been  sued  out  merely  for  delay. 
The  motion  of  the  defendant  in  error  is  therefore  granted,  and 
the 

Judgment  affirmed,  with  interest  and  ten  per  cent  damages. 


STUMPS  V.  KELLEY. 

22  Illinois,  140.     [1859.] 

Walker,  J.  This  was  an  action  on  the  case  brought  in  Cook 
County  Court  of  Common  Pleas  to  the  September  term,  1857,  by 
appellee  and  against  appellant.  The  first  count  of  the  declara- 
tion alleges  that  appellant  did  theretofore  wrongfully  and  in- 
juriousl}^  keep  a  certain  red  and  white  cow,  well  knowing  that 


576  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

the  same  was  accustomed  to  hook,  attack  and  push  with  her 
horns;  that  the  cow  did  attack  and  push  with  her  horns,  the 
plaintiff,  and  greatly  wounded,  bruised  and  injured  the  shoulder 
and  arm  of  the  plaintiff,  whereby  she  became  sick,  etc.,  for  a 
long  space  of  time,  and  was  injured  in  consequence,  in  her 
health  and  constitution,  and  was  prevented  from  pursuing  her 
ordinary  avocation,  etc.,  and  was  put  to  great  expense,  etc.,  in 
being  cured.     *     *     * 

The  defendant  filed  the  plea  of  general  issue,  to  which  the 
similiter  was  added.  At  the  November  special  term,  1857,  the 
cause  was  tried  by  the  court  and  a  jury,  and  resulted  in  a 
verdict  in  favor  of  the  plaintiff  for  $500. 

The  defendant  moved  the  court  for  a  new  trial,  which  motion 
was  overruled,  and  a  judgment  entered  on  the  verdict  against  the 
defendant,  from  which  she  appeals  to  this  court.     *     *     * 

Courts  are  created  and  established  for  the  administration  of 
justice,  and  all  legal  and  proper  means  should  be  employed  for 
the  attainment  of  that  end.  And  how  it  can  be  error  for  the 
court  to  instruct  the  jury  as  to  the  law  of  the  case,  whether 
asked  to  do  so  or  not,  we  are  at  a  loss  to  conjecture.  We  have 
been  referred  to  no  authority  that  so  holds,  and  we  cannot 
imagine  that  such  can  exist.  One  of  the  very  objects  of  having 
a  judge  is  to  instruct  the  jury  on  the  law  applicable  to  the  case. 
Instead  of  its  being  error  for  the  court  on  its  own  motion  to 
instruct,  where  it  seems  to  be  required  by  the  justice  of  the  case, 
it  is  rather  the  duty  of  the  judge  to  give  such  instructions.  The 
instructions  given  by  the  court  in  this  case,  without  being  re- 
quested by  either  party,  we  think  embrace  the  law  as  applicable 
to  the  case,  and  it  is  not  denied  that  it  does.  And  we  have  no 
hesitation  in  saying  that  so  far  from  its  being  error,  that  the 
court  acted  in  strict  conformity  with  the  duty  imposed  by  the 
oath  of  the  judge,  and  the  requirements  of  the  law.^     *     *     * 


OWEN  V.  OWEN. 

22  Iowa,  270.      [1867.] 

Action  at  law  by  wife  against  husband,  during  coverture,  to 
recover  the  sum  of  $1,600,  the  value  of  certain   7-30  United 

1  Contra  by  statute  in  Mississippi. 
— Ed. 


Sec.  7.]  owen  v.  owen.  577 

States  bonds.  In  the  petition  it  is  alleged  that  these  bonds  were, 
by  the  defendant,  given  to  the  plaintiff  "out  of  love  and  affec- 
tion and  for  and  in  consideration  of  plaintiff's  again  living  with 
defendant ; ' '  that  they  were  delivered  to  her ;  that  she  had  them 
for  the  space  of  six  months,  and  that  the  defendant  afterward 
procured  them  from  the  plaintiff,  and  sold  and  converted  them 
to  his  own  use.  The  answer  specifically  denies  every  material 
allegation  in  the  petition.  There  was  a  trial,  to  a  jury,  upon 
testimony  introduced  by  either  party  (all  of  which  is  in  the 
record  on  this  appeal).  The  cause  was 'submitted  to  the  jury 
without  instructions  from  the  court,  and  a  verdict  returned  in 
favor  of  the  plaintiff  for  $1,600.  Defendant  moved  for  a  new 
trial,  first,  because  the  verdict  was  contrary  to  law;  second,  be- 
cause contrary  to  evidence ;  third,  because,  from  the  amount  and 
nature  of  the  controversy,  it  is  apparent  that  justice  requires 
that  a  new  trial  be  granted. 

This  motion  being  denied,  the  defendant  excepts  and  appeals. 

Dillon,  J.  In  the  exercise  of  our  jurisdiction  as  an  appellate 
tribunal,  we  are  of  opinion  that  it  is  our  duty  to  reverse  this 
judgment  and  remand  the  case  for  a  new  trial.  After  a  careful 
review  of  the  testimony,  we  are  satisfied  that,  assuming,  what 
the  defendant  seemed  to  concede,  that  such  an  action  is  main- 
tainable, the  verdict  was  not  justified  by  the  evidence.^     *     *     * 

From  this  general  statement  of  the  case  it  will  be  seen  that  it 
was  most  undeniably  one  in  which  there  should  have  been  clear 
instructions  to  the  jury,  as  to  the  law  governing  it,  and  the 
rights  of  parties.  To  submit  it  to  the  jury  without  any  direc- 
tions to  guide  them,  from  the  court,  would  be  to  reach  a  result 
almost  as  uncertain  as  the  toss  of  a  copper  or  the  throw  of  dice. 

It  may  be  said  that  the  counsel  did  not  request  instructions, 
and  that  therefore  it  was  not  obligatory  on  the  court  to  give  any. 
Such  a  view  does  not  accord  with  our  conception  of  the  functions 
and  duty  of  the  judge.  He  should  see  that  every  case  goes  to 
the  jury  so  that  they  have  clear  and  intelligent  notions  of  pre- 
cisely what  it  is  that  they  are  to  decide.^     His  charge  is  their 

1  The  omitted  evidence  made  it  structions  rather  than  a  total  fail- 
improbable     that     the     bonds     had       ure  to  instruct. 

ever  been  given  to  plaintiff.  Compare   Caktwright,   J.,   in   Os- 

2  Much  the  same  rule  was  stated  good  v.  Skinner,  211  111.  229:  "No 
in  York  v.  Barnes,  39  Neb.  834,  instructions  were  asked  on  the  part 
which  was  a  case  of  misleading  in-  of  the  plaintiffs,  and  the  court  hav- 

H.  T.  p.— 37 


578  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

chart  and  compass.  In  this  case  the  jury  should  have  been  told 
that  any  promise  by  the  defendant  to  pay  or  to  give  money  to 
his  wife,  to  induce  her  to  live  with  him  again,  was  without 
consideration,  and  not  binding,  especially  so,  as  it  did  not  appear 
that  she  had  any  grounds  whatever  for  not  living  with  him. 

The  attention  of  the  jury  should  also  have  been  called  to  this 
precise  point,  viz. :  Did  the  defendant  ever  deliver  bonds  to 
the  plaintiff,  and,  if  so,  for  what  purpose  ?  If  they  were  merely 
put  into  her  custody  (which  is  a  view  not  absolutely  inconsistent 
with  even  her  own  testimony)  then  she  cannot  recover  their 
value.  If,  on  the  other  hand,  the  defendant  voluntarily  made 
an  absolute  gift  of  them  to  the  plaintiff  and  delivered  them  to 
her,  as  her  own,  then  he  would  be  liable  or  not  liable,  the  judge 
stating  which,  according  to  his  view  of  the  law,  if  the  defend- 
ant afterward,  without  her  consent,  took  and  converted  them  to 
his  own  use. 

Although  the  case  was  submitted  in  hotchpotch,  still  we  should 
not,  for  this  reason,  have  reversed  the  judgment,  if  the  result 
had  been  one  which  effectuated  justice  between  the  parties. 
What  point  the  jury  allowed  the  case  to  turn  upon,  what  facts 
they  decided,  passes  the  wit  of  man  to  know.  We  can  only 
suppose  that  they  would  have  reached  a  just  result,  if  the  issues 
and  the  questions  of  fact  and  the  law  applicable  thereto  had  been 
properly  mapped  out  to  them  by  the  court. 

Reversed. 


LOW  V.  HALL. 

47  N.  Y.  104.      [1871.] 

Appeal  from  order  of  the  general  term  of  the  Supreme  Court 
in  the  first  judicial  district,  granting  defendants'  motion  for  a 
new  trial,  upon  a  verdict  taken  under  the  direction  of  the  court 

ing   refused   the    instructions    asked  are   asked   by   the   parties.      (Drury 

for   by    the    defendant,    no    instruc-  v.    Connell,    177    HI.    43.)      Parties 

tions  were  given.    It  is  assigned  for  have  the  privilege  of  tendering  such 

error  that  the  court  erred  in  failing  instructions    concerning    the   law   as 

to  instruct  the  jury  as  to  the  law,  they   may   deem   necessary,   and  the 

but  the  only  duty  of  the  court  is  to  practice    act    requires    the    court    to 

give   or   refuse  such  instructions   as  mark  them  as  given  or  refusiSd,  but 


Sec.  7.]  low  v.  hall.  579 

at  circuit,  subject  to  the  opinion  of  the  court  at  general  term. 

This  action  was  brought  by  the  plaintiffs,  as  manufacturers 
and  proprietors  of  "Low's  highly  perfumed  bro^vn  Windsor 
soap"  to  recover  penalties  imposed  by  section  4,  of  the  act  of 
1862,  as  amended,  etc.,  for  an  alleged  violation  of  their  trade 
mark  by  the  defendants,  on  the  allegation  that  said  defendants 
"did,  knowingly,  expose,  offer  for  sale  and  sell,  in  the  city  of 
New  York,  a  spurious  article  called  'Low's  highly  perfumed 
brown  Windsor  soap,'  with  false  stamps,  labels,  and  impressions 
thereon,  with  intent  to  defraud  the  public  and  the  buyers,  and 
consumers  of  the  genuine  brown  Windsor  soap  of  the  plain- 
tiffs, contrary  to  the  statutes  aforesaid. ' ' 

On  the  trial  defendants  produced  evidence  tending  to  show 
that  the  sale  complained  of  was  done  without  any  motive  to  de- 
fraud; and  that  the  purchaser  had  full  information  that  the 
article  sold  was  an  imitation.  The  court  concluded  the  charge 
as  follows : 

"I  rule,  that  if  the  jury  should  find  precisely  as  the  defend- 
ants' witnesses  say,  still  they  are  liable. 

' '  I  direct  the  jury  to  find  a  verdict  for  plaintiffs  for  $200. ' ' 

Defendants'  counsel  excepted  to  the  ruling  of  the  court. 

Also,  to  the  refusal  of  the  court  to  submit  the  case  to  the 

jury- 

Grover,  J.  The  counsel  for  the  appellants  insist,  that  as 
the  respondents'  counsel  did  not  request  the  court  to  submit  any 
question  of  fact  upon  which  there  was  a  conflict  of  testimony  to 
the  jury,  his  exception  to  the  direction  to  the  jury,  to  find  a 
verdict  for  $200  for  the  plaintiff,  does  not  enable  him  to  raise 
any  such  question  upon  appeal,  and  cites  Winchell  v.  Hicks. 
18  N.  Y.  558,  in  support  of  his  position.  The  rule  adopted  in 
that  case  has  no  application  to  the  facts  in  the  present.  In  this 
the  judge  decided,  that  if  the  jury  should  find  precisely  as  the 
defendants'  witnesses  say,  still  they  were  liable,  and  thereupon 
directed    the  jury  to  find  a  verdict  for  the  plaintiffs;  to  which 

only    authorizes    exceptions    to    the  party     cannot     complain     that     the 

giving  or  refusing  of  an  instruction.  court  has   not   given   an   instruction 

The  court  may  modify  or  qualify  an  unless    it    has    been    prepared    and 

instruction  as  tendered  and  a  party  tendered  for  that  purpose." 

may  except  to  the  refusal  to  give  as  And  so  in  Morgan  v.  Mulhall,  214 

asked,  and  the  court  may  also  give  Mo.  451. 
instructions     without     request.       A 


I 


580  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

the  defendants'  counsel  excepted.  This  exception  presents  the 
question,  whether,  assuming  the  facts  to  have  been  precisely  as 
testified  by  the  witnesses  for  the  defendants,  they  were  liable 
to  the  penalties  imposed  by  the  fourth  section  of  chapter  306 
of  Laws  of  1862,  page  513,  entitled  "An  act  to  prevent  and  pun- 
ish fraud  in  the  use  of  false  stamps,  brands,  labels  or  trade 
marks,"  as  amended  by  section  2,  chapter  209,  Laws  of  1863. 
That  question  is,  whether,  to  render  the  party  making  the  sale 
liable  to  the  penalt}^  such  sale  must  be  made  with  intent  to 
defraud  some  person  or  persons,  or  some  body  corporate,  as  the 
testimony  of  the  defendants'  witnesses  shows  clearly  that  the  de- 
fendants had  no  such  intent  in  selling  the  single  package  of  soap 
to  the  witness  Peckham.  A  careful  reading  of  the  section  shows 
clearly,  I  thinJj,  that  the  sale  in  question  must  have  been  so 
made,  or  the  penalty  thereby  imposed  was  not  incurred.     *     *     * 


BROWNING  V.  WABASH  RY.  CO. 

124  Missouri,  55.      [1894.] 

Barclay,  J.  This  is  an  action  to  recover  statutory  damages, 
on  account  of  the  death  of  plaintiff's  husband,  ascribable,  as  she 
charges,  to  negligence  of  defendant,  in  particulars  which  will  ap- 
pear later. 

The  pleadings  need  not  be  detailed.  They  made  certain  issues, 
hereafter  shown,  which  were  submitted  for  trial  before  Judge 
Burgess  and  a  jury.     *     *     * 

Touching  the  measure  of  damages,  the  following  expression  of 
opinion,  prepared  by  my  learned  brother,  Gantt,  is  approved  and 
adopted,  namely: 

' '  The  instruction  on  the  measure  of  damages  is  also  assailed  as 
error. 

"The  instruction  was  in  these  words:  'If  the  jury  find  for 
the  plaintiff  they  will  assess  her  damages  at  such  sum  as  in 
their  judgment  will  be  a  fair  and  just  compensation  to  her  for 
the  loss  of  her  husband,  not  exceeding  the  sum  of  $5000. ' 

"The  defendant  asked  no  instruction  on  the  measure  of  dam 
ages  whatever.     No  attempt  was  made  by  it  to  point  out  the. 


Sec.  7.]  hall  v.  cedar  rapids  ry.  co.  581 

proper  elements  of  damage  in  such  eases  or  to  modify  the  gen- 
eral language  of  the  instruction. 

''The  instruction  is  not  erroneous  in  its  general  scope;  and  if, 
in  the  opinion  of  counsel  for  defendant,  it  was  likely  to  be  mis- 
understood by  the  jury,  it  was  the  duty  of  the  counsel  to  ask 
the  modifications  and  explanations,  in  an  instruction  embodying 
its  views. 

"The  court  is  not  required  in  a  civil  case  to  instruct  on  all 
questions,  whether  suggested  or  not,  and  as  there  is  nothing  in 
the  amount  of  the  verdict  to  indicate  that  the  jury  were  actuated 
by  any  improper  motive  in  their  assessment,  the  general  nature 
of  the  instruction  is  no  ground  for  reversal.  "^ 

The  judffment  is  accordingly  affirmed. 


HALL  V.  CEDAR  RAPIDS  RY.  CO. 

115  Iowa,  18.     [1901.] 

Action  at  law  to  recover  damages  for  personal  injuries  re- 
ceived by  plaintiff  while  alighting  from  a  car  owned  and  oper- 
ated by  defendant  company.  There  was  a  trial  by  jury,  resulting 
in  a  verdict  and  judgment  for  plaintiff,  and  defendant  appeals. 

Deemer,  J.  The  instruction  relating  to  the  measure  of  plain- 
tiff's recovery  in  the  event  the  jury  found  in  her  favor  was  as 
follows:  "In  estimating  the  damages,  if  any  you  find,  you  will 
allow  plaintiff  for  any  physical  suffering  and  pain  and  mental 
anguish,  if  any,  she  has  suffered  and  shown  in  evidence,  or 
which  she  may  in  the  future  suffer,  if  any,  in  consequence  of 
the  alleged  injury,  and  a  reasonable  allowance  for  any  physician 's 
bills,  if  any,  she  has  expended  in  consequence  of  said  injury, 
and  shown  in  evidence,  but  not  to  exceed  the  amount  claimed  in 
plaintiff's  petition."  This  instruction  was  clearly  erroneous,  in 
that  it  permitted  the  jury  to  enter  into  the  realm  of  speculation 
regarding  plaintiff's  future  suffering.  Such  a  charge  has  fre- 
quently been  disapproved  by  this  court.  Fry  v.  Railway  Co.,  45 
Iowa,  417;  Reed  v.  Railroad  Co.,  57  Iowa,  25;  Stafford  v.  City 

1  Accord— Biizzell  v.  Emerton,  161       failed  to  define  a  term  used.    Taylor 
Mass.  176.  V.  Seil,  120  Wis.  32. 

And     so     where     an     instruction 


582  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

of  Oskaloosa,  57  Iowa,  751 ;  Ford  v.  City  of  Des  Moines,  106  Iowa, 
96.  It  was  not  cured,  even  if  it  could  be  cured,  by  any  subse- 
quent instruction.  But  plaintiff  insists  that  defendant  may  not 
complain,  because  it  asked  no  instructions  relating  to  the  subject. 
If  the  instruction  had  been  good  as  given,  defendant  could  not, 
in  the  absence  of  request,  complain  of  it.  But  it  was  the  duty 
of  the  trial  court,  in  giving  its  instructions,  to  announce  correct 
principles  of  law.  If  it  erred  in  this  respect,  failure  of  de- 
fendant to  ask  proper  ones  will  not  cure  the  error. ^  These  rules 
are  fundamental,  and  need  no  citation  of  authorities  in  their 
support.     *     *     * 

Judgment  reversed. 


SIMONDS  V.  OLIVER. 

23  Missouri,  3.2.     [1856.] 

This  was  an  action  originally  commenced  before  a  justice  of 
the  peace,  to  recover  twenty  dollars,  alleged  to  have  been  over- 
paid by  plaintiff  in  making  change.  Plaintiff  obtained  judgment 
before  the  justice,  and  the  cause  was  appealed  to  the  law  commis- 
sioner's court. 

Upon  the  trial  before  the  law  commissioner's  court,  the  plain- 
tiff introduced  testimony  tending  to  prove  that  defendant  (Oli- 
ver) purchased  of  plaintiff  a  lamp  at  the  price  of  three  dollars ; 
that  in  payment  thereof  he  offered  plaintiff  a  twenty  dollar  gold 
piece;  that  plaintiff,  not  having  the  specie  to  give  in  change, 
defendant  then  offered  him  a  twenty  dollar  bill,  that  plaintiff 
gave  back  to  defendant  the  twenty  dollar  bill,  and  seventeen 
dollars  in  change.  There  was  no  evidence  tending  to  prove  that 
the  twenty  dollar  gold  piece  ever  came  to  the  possession  of  plain- 
tiff. Defendant,  whose  admissions  constituted  the  only  testi- 
mony introduced,  declared  that  he  had  left  the  gold  piece  upon 
the  counter  of  plaintiff. 

The  defendant  asked  the  following  instructions:    "1.  If  the 
jur>'  believe  from  the  evidence,  that  the  plaintiff  has  failed  to 

1  Accord Ey.  v.  Cove,  29  Ky.  L.  to  support  the  instruction  as  partial 

Eep    836.  non-direction  only,  in  the  absence  of 

But    in    many    similar    cases    the  any  request  for  an  instruction   cov- 

courts  have  gone  to  extreme  lengths  ering   the  point. — Ed. 


i 


Sec.  7.] 


SIMONDS   V.    OLIVER. 


583 


prove  that  there  was  an  actual  carrying  away  of  the  twenty 
dollar  gold  piece  in  question,  then  the  jury  will  find  for  the 
defendant.  2.  If  the  jury  believe  from  the  evidence,  that  the 
plaintiff  has  failed  to  prove  an  actual  deficit  on  his  part,  then 
the  jury  will  find  for  the  defendant." 

The  court  refused  to  give  the  instructions  asked.  Defendant 
excepted,  and  further  asked  the  court  to  instruct  the  jury  in 
some  manner,  without  specifying  any  particular  instruction  to 
be  given.  The  court  failed  to  do  so,  and  the  cause  was  submitted 
to  the  jury  entirely  without  instructions.  The  jury  found  for 
plaintiff,  and  judgment  was  accordingly  given  for  him.  Defend- 
ant appealed  to  this  court. 

Leonard,  Judge,  delivered  the  opinion  of  the  court. 

There  is  no  error  in  the  record,  and  it  is  difficult  to  imagine 
why  the  case  was  brought  here.  The  controversy  turned  exclu- 
sively upon  a  single  question  of  fact,  and  this  was  submitted  to 
the  jury  who  fairly  passed  upon  it,  after  hearing  all  the  evi- 
dence tendered  by  either  party. 

The  specific  instructions  asked  by  the  defendant  were  imr 
proper,  and  rightly  refused.^  The  English  custom  of  summing 
up  the  evidence,  and  charging  the  jury  as  to  the  whole  law  of 


1  Baldwin,  J.,  in  Catts  v.  Phalen, 
2  Howard  (U.  S.),  376:  "A  party 
cannot  assign  for  error  the  refusal 
of  an  instruction  to  which  he  has 
not  a  right  to  the  full  extent  as 
stated,  and  in  its  precise  terms;  the 
court  is  not  bound  to  give  a  modi- 
fied instruction  varying  from  the 
one  prayed.  Here  they  were  asked 
to  instruct  the  jury  that  the  belief 
of  the  plaintiff  that  the  ticket  had 
been  fairly  drawn,  and  the  conse- 
quent payment,  prevented  a  recov- 
ery, without  referring  to  the  fact  in 
evidence  that  that  belief  was  caused 
by  the  false  and  fraudulent  asser- 
tions of  the  defendant." 

Mr.  Justice  Millkb,  in  Worth- 
ington  V.  Mason,  101  U.  S.  149: 
"The  errors  assigned  in  this  case 
relate  solely  to  prayers  for  instruc- 
tions refused  by  the  court  and  to 
exceptions   to  its   charge.     The  bill 


of  exceptions  shows  a  paper  signed 
by  the  defendants'  counsel,  in  which 
the  court  is  asked  to  affirm  a  series 
'of  propositions  of  law  as  govern- 
ing the  case, '  seven  in  number. 
They  were  presented  as  a  whole,  re- 
fused as  a  whole,  and  excepted  to  in 
the  same  manner.  If  any  one  of 
them  was  rightfully  rejected  no  er- 
ror was  committed,  because  it  was 
not  the  duty  of  the  court  to  do  any- 
thing more  than  pass  upon  the 
prayer  as  an  entirety.  Beaver  v. 
Taylor  et  al.,  93  U.  S.  46;  Trans- 
portation Line  v.  Hope,  95  Id.  297. 
We  shall  presently  see  why  there  is 
no  error  in  the  rejection  of  this 
prayer. ' ' 

Where  the  statute  provides  for 
written  requests,  the  request  must 
be  properly  formulated  in  writing 
to  support  an  exception.  Hacker  v. 
Heiney,  111  Wis.  313. 


I 


i. 


584  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

the  ease,  does  not  prevail  in  this  state ;  and,  we  believe,  never 
has  prevailed  here.  In  our  practice,  each  party  asks  specific 
instructions  upon  such  points  as  he  may  deem  material,  and  the 
courts  generally  submit  the  case  to  the  jury  upon  these  instruc- 
tions, unless  they  think  proper  to  give  others  of  their  own  sug- 
gestion, as  a  substitute,  or  in  addition.  However  desirable  it  un- 
doubtedly is  that  the  courts,  whose  duty  it  is  to  see  that  justice 
is  administered  according  to  law,  should  take  upon  themselves 
the  active  duty  of  seeing  that  the  jury  are  properly  instructed 
upon  the  law  which  they  must  apply  to  the  facts  in  making  up 
their  verdict,  they  have  never  been  considered  bound  to  charge 
otherwise  than  as  specifically  asked,  and,  accordingly,  the  refusal 
to  do  so  has  never  been  treated  here  as  an  error  for  which  the 
judgment  could  be  reversed. 

Let  the  judgment  he  affirmed. 


O'NIEL  V.  ORR. 

3  Scammon  (III),  1.     [1842.] 

This  was  an  action  of  replevin,  instituted  in  the  Peoria  Circuit 
Court,  in  the  name  of  Robert  0  'Niel  and  Andrew  Gray,  against 
Christopher  Orr  and  others,  for  a  steamboat  called  the  Ten- 
nessee. Gray  subsequently  filed  an  affidavit  stating  that  he  was 
made  a  plaintiff  without  his  consent,  and  that,  so  far  as  he  was 
concerned,  he  desired  the  suit  to  be  dismissed.  Whereupon  the 
court  ordered  that  the  plaintiffs  be  severed,  and  that  the  suit 
proceed  in  the  name  of  Robert  O'Niel,  as  sole  plaintiff, 

On  the  trial  the  plaintiff"  proved,  among  other  things,  that  one 
Phillips  sold  the  boat  to  0  'Niel ;  that  $500,  a  part  of  the  purchase 
money,  was  paid  down,  and  the  balance  secured  to  be  paid  at  a 
future  time,  by  a  deed  of  trust. 

The  defendants  claimed  the  right  to  the  possession  of  the  boat 
by  virtue  of  the  lien  of  an  execution  against  Phillips,  alleged  to 
be  in  the  hands  of  the  sheriff  of  Peoria  county,  at  the  time  of  the 
sale  to  O'Niel.  The  plaintiff  contended  that  the  boat  was  in 
Missouri  at  the  time  of  the  sale;  and  after  the  evidence  had 
been  heard,  requested  the  court  to  instruct  the  jury,  "That  if 
the  jury  should  believe,  from  the  evidence,  that  the  steamboat 


Sec.  7.]  o'neil  v,  orr.  585 

Tennessee,  was  in  the  county  of  Peoria,  at  the  time  of  the  issuing 
of  the  execution  read  in  evidence  in  this  cause,  and  if  the  jury 
further  believe,  from  the  evidence,  that  the  said  steamboat  Ten- 
nessee was  removed  from  the  state  of  Illinois  into  the  state  of 
Missouri,  by  tlie  defendant  in  said  execution,  and  there  fairly  and 
bona  fide  sold  by  the  said  Thomas  Phillips  to  the  plaintiff,  with- 
out any  knowledge  on  the  part  of  said  Phillips,  or  said  plaintiff, 
of  the  existence  of  said  execution,  that  after  such  sale,  so  made, 
the  property  could  not  afterwards  be  levied  on  by  the  said  execu- 
tion;" which  instruction  was  given  by  the  court,  but  with  the 
following  qualification : 

"That  in  order  to  constitute  a  bona  fide  purchaser,  the  consid- 
eration must  be  actually  paid,  and  not  merely  secured  to  be 
paid. ' '  The  plaintiff  excepted  to  this  qualified  instruction,  and  a 
bill  of  exceptions  was  signed  and  sealed. 

The  jury  found  a  verdict  for  the  defendants.  The  plaintiff 
moved  for  a  new  trial.  The  motion  was  overruled  and  the  judg- 
ment rendered  on  the  verdict.     *     *     * 

Wilson,  Chief  Justice,  delivered  the  opinion  of  the  court : 

The  second  assignment  of  error,  which  questions  the  correct- 
ness of  the  instruction  of  the  court,  raises  the  only  point  in  the 
case  that  can  properly  be  investigated;  and  the  decision  of  that 
point  disposes  of  the  whole  case.  In  the  trial  of  the  cause  in 
the  court  below,  the  legality  of  the  sale  of  a  steamboat  became  a 
material  question,  and  the  court  instructed  the  jury,  "that  in 
order  to  constitute  a  bona  fide  purchaser,  the  consideration  must 
be  paid,  and  not  merely  secured  to  be  paid. ' ' 

In  one  aspect  of  the  case,  this  instruction  must  have  had  a 
decisive  influence  upon  the  determination  of  the  jury,  and  in  no 
view  of  it  can  it  be  regarded  as  correct.  When  the  sale  of  an 
article  of  property  is  in  other  respects  fair  and  legal,  allowing 
time  for  the  payment  of  the  purchase  money,  does  not  vitiate,  or 
even  impugn  the  legality  of  the  transaction.  Sales  upon  time  are 
of  more  frequent  occurrence  than  cash  sales,  and  are  of  equal 
validity.  To  declare  otherwise  would  estal)lish  a  new  rule  which 
would  set  afloat,  and  render  doubtful  and  precarious  the  titles  to 
a  large  portion  of  the  property  of  the  community.  The  objection 
that  the  plaintiff  cannot  contest  the  propriety  of  this  instruction, 
because  it  was  given  as  a  qualification  to  that  asked  for  by  him- 
self, is  without  even  plausibility.  A  party  is  not  precluded  from 
objecting  to  an  erroneous  instruction  which  operates  against  him, 


586  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

merely  because  it  is  giveu  in  connection  with  one  which  he  may 
have  prayed  for,  notwithstanding  that  prayed  for  may  also  be 
illegal.  When  instructions  are  given  by  the  court  at  the  instance 
of  a  party,  it  is  just  and  proper  that  he  should  afterwards  be 
estopped  by  his  own  act  from  denying  their  legality;  but  upon 
no  principle  can  he  be  debarred  from  resisting  a  decision  which 
he  has  neither  solicited  nor  sanctioned. 

The  decision  of  the  court  below  is  reversed,  and  the  cause  re- 
manded for  a  rehearing. 

Judgment  reversed. 


MOBILE,  ETC.,  RY.  v.  JUREY. 

Ill  U.  S.  584.      [1884.] 

Mr.  Justice  Woods  delivered  the  opinion  of  the  court. 

The  defendants  in  error,  Jurey  and  Gillis,  brought  this  action 
for  the  use  of  the  Factors'  &  Traders'  Insurance  Company 
against  the  plaintiff  in  error,  the  Mobile  &  Montgomery  Railway 
Company,  to  recover  $12,000  for  the  failure  of  the  latter  to  de- 
liver certain  cotton  which  had  been  placed  in  its  possession  as 
a  common  carrier.  The  complaint,  which  was  drawn  according  to 
the  form  prescribed  by  the  Code  of  Alabama,  was  as  follows: 
*     *     * 

The  last  assignment  of  error  which  we  shall  notice,  is  based  on 
the  charge  of  the  court,  to  the  effect,  that  "the  measure  of  dam- 
ages would  be  the  value  of  the  cotton  in  New  Orleans,  where  it 
was  to  have  been  delivered,  together  with  interest  on  said  sum 
at  eight  per  cent  per  annum  from  the  time  when  the  cotton  ought 
to  have  been  delivered."  The  error  alleged  is,  that  the  rate  of 
interest  should  have  been  placed  at  five  per  cent,  which  is  the 
legal  rate  in  Louisiana,  where  the  contract  was  to  be  performed, 
and  not  at  eight  per  cent,  which  was  the  legal  rate  in  Alabama, 
where  the  contract  was  made. 

Conceding  that  the  charge  in  respect  to  the  rate  of  interest  was 
erroneous,  the  judgment  should  not  be  reversed  on  account  of  the 
error.  The  charge  contained  at  least  two  propositions,  first, 
that  the  measure  of  damages  was  the  value  of  the  cotton  in  New 
Orleans,  with  interest  from  the  time  when  the  cotton  should 
have  been  delivered ;  second,  that  the  rate  of  interest  should  be 


Sec.  7.]  haines  v.  republic  fire  ins.  co,  587 

eight  per  cent.  It  is  not  disputed  that  the  first  proposition  was 
correct.  But  the  exception  to  the  charge  was  general.  It  was, 
therefore,  ineffectual.  It  should  have  pointed  out  to  the  court 
the  precise  part  of  the  charge  that  was  objected  to.  "The  rule 
is,  that  the  matter  of  exception  shall  be  so  brought  to  the  atten- 
tion of  the  court,  before  the  retirement  of  the  jury  to  make  up 
their  verdict,  as  to  enable  the  judge  to  correct  any  error  if  there 
be  any  in  his  instructions  to  them."  Jacobson  v.  The  State,  55 
Ala.  151. 

"When  an  exception  is  reserved  to  a  charge  which  contains 
two  or  more  distinct  or  separable  propositions,  it  is  the  duty  of 
counsel  to  direct  the  attention  of  the  court  to  the  precise  point 
of  objection."  South  &  North  Alabama  Railroad  Company  v. 
Jones,  56  Ala.  507. 

So  in  Lincoln  v.  Claflin,  7  Wall.  132,  this  court  said:  "It  is 
possible  the  court  erred  in  its  charge  upon  the  subject  of  Tiam- 
ages  in  directing  the  jury  to  add  interest  to  the  value  of  the 
goods.  *  *  *  But  the  error,  if  it  be  one,  cannot  be  taken 
advantage  of  by  the  defendants,  for  they  took  no  exception  to  the 
charge  on  that  ground.  The  charge  is  inserted  at  length  in  the 
bill.  *  *  *  It  embraces  several  distinct  propositions,  and  a 
general  exception  cannot  ava-il  the  party  if  any  one  of  them  is 
correct."  On  these  authorities  we  are  of  opinion  that  the  ground 
of  error  under  consideration  was  not  well  saved  by  the  bill  of 
exceptions. 

Many  other  grounds  of  error  have  been  assigned  though  not 
argued  by  counsel  for  the  plaintiff  in  error.  But  what  we  have 
said  covers  most  of  them.  The  others  are  not  well  taken.  We 
find  no  error  in  the  record. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


HAINES  V.  REPUBLIC  FIRE  INS.  CO. 

59  New  Hampshire,  199.     [1879.] 

Assumpsit,  on  a  policy  of  insurance.  The  evidence  tended  to 
show  that  the  application  was  taken  by  one  Page,  who  was  em- 
ployed by  Webster,  Morril  &  Co.,  the  defendants'  agents,  to  so- 
licit insurance  for  them,  and  give  them  information  as  to  pro- 
posed risks,  and  that  he  received  a  commission  on  the  premiums 


588  CONDUCT   OP    THE   TRIAL.  [ChAP.    IV. 

on  policies  issued  on  risks  obtained  by  him.  The  defense  was, 
that  there  was  a  fraudulent  over-valuation  of  the  property.  The 
plaintiff  claimed  that  Page  was  the  defendants'  agent,  and  that 
they  were  bound  by  his  knowledge  of  the  condition  of  the 
property. 

On  this  branch  of  the  case,  the  court  instructed  the  jury  as  to 
the  duties  of  agents  and  how  far  their  acts  were  binding  on  the 
company,  and  called  their  attention  to  the  provisions  of  Gen.  St., 
Chap.  159,  and  stated  to  the  jury  that  there  was  no  evidence  that 
Page  possessed  the  qualifications  required  by  the  statute  for  an 
agent. 

The  plaintiff  excepted  to  these  instructions,  but  did  not  state 
the  ground  of  exception.  At  the  time  the  instructions  were 
given  and  the  exception  was  taken,  the  plaintiff's  counsel  were 
not  aware  that  the  statute  referred  to  by  the  court  had  been 
repealed,  and  did  not  take  the  exception  on  that  ground. 

Verdict  for  the  defendants,  and  motion  by  the  plaintiff  for  a 
new  trial. 

Stanley,  J.  The  only  error  in  the  instructions  was  as  to  the 
qualifications  of  agents ;  but  this  is  not  now  open  to  the  plaintiff. 
The  exception  was  general.  The  point  now  taken  was  not  known 
to  or  relied  on  by  the  counsel  at  the  time  the  exception  was 
taken.  Exceptions  must  stand  on  the  ground  on  which  the  party 
taking  them  intended  they  should  stand  when  they  were  taken. 
But  if,  when  taken,  it  was  intended  to  rely  on  this  point,  it  could 
not  now  avail  the  plaintiff,  for  the  attention  of  the  court  was  not 
called  to  the  point  now  relied  on.  When  an  exception  is  taken 
to  instructions  which  are  erroneous,  upon  a  point  which,  if  made 
known  at  the  time,  would  have  been  rectified,  the  point  must  be 
stated,  so  that  the  court  can  understand  the  ground  of  objec- 
tion, and  have  an  opportunity  to  correct  the  error.  If  not  stated, 
the  exception  will  be  regarded  as  waived.  It  would  be  unjust 
to  allow  a  party  to  lie  by  and  take  the  chances  of  a  verdict  in  his 
favor,  and,  if  defeated,  avail  himself  on  an  exception  which  might 
have  been  obviated  if  seasonably  known.  Moore  v.  Ross,  11  N. 
H.  547,  557;  McCouihe  v.  Sawyer,  12  N.  H.  396;  Whipple  v. 
Stevens,  22  N.  H.  219 :  Hayward  v.  Bath,  38  N.  H.  179 ;  Heath 
v.  Heath,  58  N.  H.  292 ;  Ford  v.  Monroe,  20  Wend.  210. 

Exception  overruled.^ 

1  The  rule  is  less  strict  in  most  of  law,  rather  than  the  method  of 
jurisdictions  when  the  error  is  one       formulating   the   instructions. — Ed. 


Sec.  7.]  hindman  v.  first  nat.  bank.  589 

HINDMAN  V.  FIRST  NAT.  BANK. 

112  Federal  Reporter,  931.     [C.  C.  A.  1902.] 

LuRTON,  Circuit  Judge,  having  made  the  foregoing  statement 
of  the  case,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  has  presented  no  less  than  182  assign- 
ments of  error,  an  unnecessarily  prodigious  number.  No  less 
than  41  of  these  are  errors  assigned  upon  the  charge  of  the  court. 
These  are  all  based  upon  eight  exceptions  taken  to  the  eharg^. 
Objection  is  made  that  these  exceptions  are  too  general ;  that  each 
is  an  exception  covering  several  distinct  propositions;  and  that, 
if  any  proposition  be  good,  the  whole  exception  must  fail.  John- 
son V.  Garber,  19  C.  C.  A.  556,  73  Fed.  523.  An  exception  to  a 
charge  should  be  taken  before  the  jury  retire.  It  should  be 
sufficiently  definite  to  call  the  judge 's  attention  to  the  particular 
matter  objected  to,  in  order  that  he  may  have  an  opportunity 
to  correct  it.  Neither  should  an  exception  cover  two  distinct 
propositions,  for  such  an  exception  is  insufficient  if  either  one 
should  prove  correct.  Railroad  Co.  v.  Jurey,  111  U.  S.  596,  4 
Sup.  Ct.  566,  28  L.  Ed.  527 ;  Bogk  v.  Gassert,  149  U.  S.  25,  13 
Sup.  Ct.  738,  37  L.  Ed.  631 ;  Holloway  v.  Dunham,  170  U.  S. 
619,  18  Sup.  Ct.  784,  42  L.  Ed.  1165 ;  Felton  v.  Newport,  34  C. 
C.  A.  470,  92  Fed.  470.  This  objection  must  be  regarded  as  fatal 
to  most  of  the  exceptions,  taken  to  the  charge  as  delivered,  though 
there  is  one  objection  which  may  fairly  be  regarded  as  sufficiently 
definite  to  base  assignments  of  error  upon.  That  exception  is  in 
these  words :  ' '  We  desire  to  also  except  to  the  court 's  measure 
of  damages  in  this  case. ' '  What  the  court  had  said  on  this  sub- 
ject was  this: 

''If  the  jury  should  conclude  that  the  plaintiff  is  entitled  to 
recover  anything,  then  the  measure  of  the  plaintiff's  damages 
would  be  the  difference  between  the  value  of  the  eighty  shares 
of  stock  on  the  31st  day  of  December,  1892,  and  its  value  of 
February  6,  1893,  when  the  plaintiff  bought  it.  Interest  may  be 
allowed  on  this,  if  the  jury  see  fit.  For  any  depreciation  which 
may  have  resulted  after  the  latter  date  the  defendants  would  not 
be  responsible,  inasmuch  as  that  depreciation  may  have  been  the 
result  of  causes  with  which  the  defendants  had  no  connection. ' ' 

This  paragraph  was  followed  by  some  observations  upon  parts 
of  the  evidence,  intended  as  an  application  of  the  proposition 


590  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

of  law  quoted,  which  did  not  involve  the  statement  of  any  new 
or  distinct  proposition.  This  exception  has  been  criticised,  but 
we  think  the  trial  judge  could  not  have  misapprehended  the  scope 
of  the  exception,  and  that  the  charge  on  this  subject  of  damages 
may  be  regarded  as  constituting  a  single  subject.  In  dealing 
with  an  objection  to  an  exception  this  court,  in  Felton  v.  New- 
port, 34  C.  C.  A.  470,  92  Fed.  470,  speaking  by  Circuit  Judge 
Severens,  said : 

''The  charge  upon  this  subject  was  entire,  and  bound  up  in  a 
single  proposition.  If  it  was  erroneous  in  any  substantial  par- 
ticular, it  would  seem  that  the  exception  would  reach  the  error, 
especially  when  it  pervades  the  whole  instruction  given  upon 
the  subject.  "1 

The  instruction  limited  the  plaintiff  to  a  recovery  of  the 
difference  between  the  value  of  the  shares  on  December  31,  1892, 
the  day  the  company  was  licensed  to  do  business,  and  February 
6,  1893,  the  date  when  plaintiff  bought  his  share ;  in  others  words, 
if  the  shares  of  the  company  were  worth  as  much  on  February 
6,  1893,  as  they  had  been  on  December  31,  1892,  the  plaintiff  had 
sustained  no  loss,  although  at  both  dates  the  shares  may  have 
been  much  less  intrinsic  value  than  the  price  paid  for  them.  This 
instruction  was  erroneous,  and  must  result  in  a  reversal  and  a 
new  trial.     *     *     * 


Section  8.    Verdicts. 

(a)     Return  and  Entry. 

SAUNDERS  V.  FREEMAN.i 

Moore,  33.     [1561.] 

Trinity,  3,  Elizabeth.    In  a  quid  juris  clamat,^  the  tenant  said 
that  he  held  in  tail  under  the  grant  of  A.     The  plaintiff  said 

1  In   many  of   the  western   states  instruction    in    order    to    found    an 

a  general  exception  to  a  particular  exception  thereon.     Harding  v.  Ry., 

written    instruction    is    sufficient    to  232  Mo.  444. 

raise  any  and  aU  questions.     Doud  i  This     ease     is     anonymous     in 

V.  Eeid,   53   Mo.   App.   553;    Ey.  v.  Moore,  but  a  part  of  what  is  evi- 

Young,     30     Colo.     349.       Compare  dently  the  same  case  is  reported  in 

Smith  V.  Ey.,  74  N.  J.  L.  452.     It  Dyer,     217,     under     the     name     of 

has  also  been  held  that  it  is  not  nee-  Saunders   v.   Freeman, 

essary  to  object  to  the  giviag  of  an  2  For  this  writ,  see  Jacobs '  Law 


Sec.  8.]  Lawrence  v.  stearns.  591 

that  A  did  not  grant :  Upon  which  they  were  at  issue,  and  the 
nisi  prius  issued  to  the  county  of  North — ,  where,  before  Dyer 
and  Benlow,  the  inquest  was  charged  upon  the  said  issue;  the 
jurors  left  the  bar,  and,  after  the  rising  of  the  court,  they  re- 
turned before  the  justices  and  gave  a  verdict  privately  for  the 
defendant,  and  had  leave  to  eat  and  drink.  Afterwards,  on  the 
next  day,  when  the  court  was  sitting,  they  returned  and  gave 
their  verdict  properly,  and  found  for  the  plaintiff;  and  all  this 
matter  was  entered  on  the  postea. 

And  on  a  day  in  banc,  the  question  was  for  which  of  these 
parties  the  judgment  should  be  given.  The  opinion  of  all  the 
justices  was  that  the  judgment  should  be  given  for  the  plaintiff, 
because  the  last  verdict  which  was  rendered  openly  in  court  is 
the  verdict  in  fact  and  not  the  first,  since  on  a  privy  verdict 
before  the  justices  none  of  the  parties  are  called ;  and  if  one  of 
the  jurors  die  in  the  interim  between  the  first  verdict  rendered 
and  the  second,  or  if  the  judge  die,  the  verdict  taken  before  is 
void.  And  yet  neither  the  one  nor  the  other  after  verdict  ren- 
dered would  prevent  judgment  being  given. 

And  also,  if  the  jurors  will  not  say  anything  the  next  day,  the 
acceptance  of  the  first  verdict  will  be  to  no  purpose,  for  the  ren- 
dering of  this  verdict  is  allowed  solely  for  the  relief  of  the  jury. 

And  it  was  said  by  Dyer  that  the  eating  and  drinking  before 
the  second  verdict  would  not  make  it  void,  because  it  was  done 
by  leave  of  the  justices,  and  also  at  their  own  expense;  and 
though  the  jurors  eat  and  drink  before  rendering  their  verdict, 
this  will  not  avoid  it,  if  not  done  at  the  cost  of  one  of  the 
parties.3  If  it  is  at  the  cost  of  the  jurors  themselves  it  is  not 
material,  as  was  lately  adjudged  in  the  case  of  one  Palskin  of 
Cornwall. 


LAWRENCE  v.  STEARNS. 

11  Pickering  (Mass.),  .501.     [1831.] 

The  jury  in  this  case  returned  specially  their  doings,  which 
appear  in  the  following  certificate  signed  by  the  foreman  : 

Dictionary,  title,  Quid  juris  olamat,       the  ,iury,   see   Sandstrom   v.   Oregon 
and  Fitzherbert,  N.  B.  345  A.  &e.  Nav.  Co.,  136  Pac.  878,  49  L.  E. 

3  For   a    modern    case  of   treating       A.    (N.   S.)    889,   annotated. 


592  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV. 

"The  jury,  after  receiving  instructions  from  the  court,  retired 
to  their  room,  and  after  much  consultation,  agreed  upon  a  ver- 
dict at  about  9  o'clock  in  the  evening,  at  which  time  the  court 
had  adjourned  until  the  following  morning;  which  verdict  was 
as  follows: — That  the  defendant  is  guilty  in  manner  and  form 
as  the  plaintiff  has  declared  against  him ; — which  verdict  was  not 
reduced  to  writing,  but  it  was  agreed  that  it  should  be  done  in 
the  morning ;  and  after  such  verdict  M'as  agreed  upon,  the  officer 
in  attendance  upon  the  jury  was  informed  that  they  had  agreed, 
and  he  permitted  the  jurors  to  separate.  The  jury  again  met  in 
their  room  the  following  morning  to  bring  in  their  verdict,  when 
one  of  their  fellows  refused  to  concur  therein.  Much  consulta- 
tion was  had,  but  after  the  refusal  of  said  juror,  the  jury  were 
unable  again  to  agree." 

The  dissenting  juror  stated  to  the  court,  that  the  jury,  before 
their  separation,  had  agreed  upon  a  verdict  for  the  plaintiff, 
and  that  he  himself  then  concurred  therein ;  but  that  after  their 
separation  he  had  more  maturely  considered  the  whole  subject, 
and  could  not  conscientiously  assent  to  the  verdict.  Whereupon 
the  plaintiff  moved  that  judgment  should  be  entered  upon  the 
verdict;  to  which  the  defendant  objected;  and  thereupon  the 
cause  was  continued,  in  order  that  the  motion  might  be  submitted 
to  the  determination  of  the  whole  court. 

Shaw,  C.  J.,  afterwards  drew  up  the  opinion  of  the  court.  The 
only  verdict  which  can  be  received  and  regarded,  as  a  complete 
and  valid  verdict  of  a  jury,  upon  which  a  judgment  can  be  ren- 
dered, is  an  open  and  public  verdict,  given  in  and  assented  to, 
in  open  court,  as  the  unanimous  act  of  the  jury,  and  affirmed 
and  entered  of  record,  in  the  presence  and  under  the  sanction  of 
the  court.  3  Bl.  Comm.  377 ;  Root  v.  Sherwood,  6  Johns.  R.  68. 
A  convenient  practice  has  been  adopted  in  this  country,  author- 
izing the  jury,  when  they  agree  during  the  adjournment  of  the 
court,  to  seal  up  their  verdict  and  separate,  and  come  in  and 
affirm  it  at  the  next  opening  of  the  court.  But  in  such  case,  the 
verdict  is  to  be  affirmed  in  open  court,  as  the  unanimous  act  of 
the  jury,  and  in  presence  of  the  whole  panel,  so  that  each  juror 
has  an  opportunity  to  express  his  dissent  to  the  court,  in  case  his 
decision  has  been  mistaken  or  misrepresented  by  the  foreman  or 
his  fellows,  or  in  case  he  has  been  forced  into  acquiescence  by 
improper  means.  Such  an  affirmation  is  the  only  evidence  the 
court  can  receive  of  the  free  and  unanimous  assent  of  the  jury 


Sec.  8.]  root  v.  sherwood.  593 

to  the  verdict.  It  follows,  therefore,  that  if  any  one  juror  shall 
then  express  his  dissent,  and  persist  in  it,  the  verdict  cannot  be 
recorded.  If  indeed  the  jury  by  collusion  should  declare  them- 
selves agreed,  when  they  are  not,  in  order  to  induce  the  officer 
to  permit  them  to  separate,  or  if  one  juror  should  declare  his 
assent,  with  an  intent  afterwards  to  dissent  in  court,  it  would 
undoubtedly  be  a  great  misdemeanor  and  render  the  party  liable 
to  summary  punishment.  And  if,  after  a  jury  has  so  agreed  and 
before  the  verdict  is  affirmed,  whilst  it  may  still  be  considered 
as  resting  in  the  breast  of  the  jury,  and  any  one,  especially  a 
party  interested,  should  enter  into  discussions  with  a  juror  and 
endeavor  to  influence  his  opinion  and  to  induce  him  to  dissent 
from  the  verdict  before  agreed  to,  it  must  be  considered  as  a  great 
breach  of  propriety  and  of  duty,  both  in  the  party  who  attempts 
such  practice,  and  in  the  juror  who  permits  it. 

In  this  case  there  was  no  verdict  which  the  court  can  recognize, 
and  the  motion  must  be  overruled.^ 


ROOT  V.  SHERWOOD. 

6  Johnson  (N.  Y.)  68.     [1810. ] 

This  was  an  action  for  a  libel.  The  cause  was  tried  at  the 
Delaware  circuit,  in  September,  1809,  before  Mr.  Justice  Tpiomp- 

SON. 

The  trial  lasted  till  late  in  the  evening,  and  after  the  charge 
of  the  judge,  the  parties  consented  that  the  jury  might  seal  up 
their  verdict.  At  the  opening  of  the  court,  on  the  next  day, 
the  jury  appeared,  and  the  foreman  delivered  the  sealed  verdict, 
which  was  opened  and  read,  by  which  the  jury  found  for  the 
plaintiff  for  $150  damages.  On  being  polled,  nine  of  the  jurors 
dissented  from  the  verdict;  but,  at  the  same  time,  stated  that 
they  did  agree  to  the  verdict  when  it  was  made,  and  so  informed 
the  constable  before  they  separated.  The  judge  directed  the  ver- 
dict to  be  entered,  subject  to  the  opinion  of  the  court,  on  the 
question,  whether  the  same  ought  to  be  recorded. 

1  The  rule  requiring  a  unanimous       the  states.     See  Mo.  Const.  Art.  IT, 
verdict  has  been  changerl  by  consti-       §  28. 
tutional  amendment  in  a  number  of 
H.  T.  p.— 38 


ll 


594  CONDUCT   OP    THE   TRIAL.  [ChAP.    IV. 

Per  Curiam.  The  jury,  when  they  came  to  the  bar  to  deliver 
in  their  verdict,  had  a  right  to  dissent  from  the  verdict  to  Avhich 
they  had  previously  agreed.  There  is  no  verdict  of  any  force  but  a 
public  verdict,  given  openly  in  court;  until  it  was  received  and 
recorded,  it  was  no  verdict,  and  the  jury  had  a  right  to  alter  it 
as  they  may  a  private  verdict.  The  previous  agreement,  that  the 
jury  might  seal  up  their  verdict,  did  not  take  away  from  the 
parties  the  right  to  a  public  verdict,  duly  delivered.  There  being, 
then,  no  legal  verdict  in  this  case,  a  new  trial  must  be  awarded, 
with  costs  to  abide  the  event  of  the  suit. 

New  trial  granted. 


BLACK  V.  THORNTON. 
31  Georgia.,  641.     [I860.] 

Trover  for  the  conversion  of  certain  slaves;  pleas,  not  guilty 
and  the  statute  of  limitations.     *     *     * 

The  jury  came  into  court  with  a  verdict  "for  the  defendant." 

Before  the  verdict  was  received  and  entered  as  such,  counsel 
for  plaintiffs  moved  the  court  to  poll  the  jury,  which  motion  the 
court  granted,  and  the  jury  were  polled. 

When  the  tenth  juror  was  called,  and  asked  the  question: 
"How  do  you  find  for  the  plaintiffs  or  for  the  defendant?"  he 
answered,  "I  am  not  fully  satisfied,  but  I  could  find  no  other 
verdict  with  the  lights  before  me."  The  juror  was  again  asked 
the  question,  and  answered  as  follows:  "I  don't  know  that  I  can 
answer  that  question. ' ' 

The  presiding  judge  then  said  to  the  jury:  "The  verdict  not 
appearing  to  be  unanimous,  you  must  retire,  gentlemen,  and  briiig 
in  a  unanimous  verdict.  I  trust,  gentlemen,  that  you  will  not 
consider  that  either  the  court  or  the  counsel  have  detained  you 
thus  long,  on  a  matter  in  which  you  have  no  interest,  merely  to 
harass  you.  We  are  all  doing  merely  our  duty  which  the  law 
compels  us  to  perform.  It  is  my  duty  to  receive  no  verdict  that 
is  not  unanimous ;  and  Mr.  Harman  having  answered  to  the  ques- 
tion, 'How  do  you  find,  for  the  plaintiffs  or  for  the  defendant?' 
'that  he  don't  know  that  he  can  answer  the  question,'  neither 
agrees  or  disagrees  to  the  verdict.  The  law,  though,  requires 
that  he  agree  to  it,  and  he  not  agreeing,  you  have  nothing  to  do 


Sec.  8.]  black  v.  Thornton.  595 

but.  to  retire  to  your  room,  and  let  him,  and  others  that  agree 
with  him,  convince  j^ou  that  you  are  Avrong.  You  must  discuss 
and  deliberate.  For  that  purpose  you  are  sent  out.  Retire,  gen- 
tlemen, and  make  up  your  verdict." 

The  jury  returned  the  same  verdict  as  before,  and  at  the  re- 
quest of  plaintiffs'  counsel  the  jury  was  again  polled. 

Counsel  for  plaintiffs  requested  the  court  in  polling  the  jury  to 
ask  each  juror  whether  the  verdict  was  his  verdict,  and  had  the 
approbation  of  his  judgment,  which  request  the  court  refused. 

Counsel  for  plaintiff  also  requested  the  court  to  require  each 
juror  to  answer  for  himself,  and  without  reference  to  what  any 
of  his  fellows  may  have  answered  before  him,  and  to  request 
any  juror,  who  shall  say  anything  about  being  fully  satisfied,  to 
state  whether  he  is  fully  satisfied  with  the  verdict  now.  This 
request  was  refused  by  the  court. 

In  polling  the  jury  the  second  time,  the  same  form  of  question 
was  adopted  as  at  first,  in  answer  to  which,  seven  of  the  jurors 
said:  ''for  the  defendant,"  one  said  "I  find  for  the  defendant, 
but  am  not  fully  satisfied  with  the  evidence  before  us;"  one  said, 
"I  am  not  fully  satisfied,  but  with  the  lights  before  me,  I  can 
find  no  other  verdict  but  for  the  defendant;"  one  said,  "I  am 
not  fully  satisfied  that  I  am  right,  but  I  find  for  the  defendant;" 
one  said,  ''I  did  not  understand  you  before,  I  am  not  fully  satis- 
fied, but  I  find  for  the  defendant ;"  and  one  said,  "I  am  not  fully 
satisfied,  but  with  the  testimony  we  had  before  us,  I  find  for  the 
defendant." 

The  verdict  was  then  received  and  entered  as  the  unanimous 
verdict  of  the  jury. 

Counsel  for  plaintiffs  then  moved  for  a  new  trial  of  said  case 
on  the  following  grounds  : 

1st.  Because  the  verdict  Avas  not  the  unanimous  verdict  of 
the  jury. 

2d.  Because  five  of  the  jurors,  when  polled,  in  effect,  denied 
that  the  verdict  was  their  verdict,  and  their  answers  show  that  the 
said  verdict  did  not  receive  the  approbation  of  their  judgment. 

3d.  Because  the  court  erred  in  refusing  to  poll  the  jury  ac- 
cording to  the  form  of  question  and  requirement,  requested  by 
counsel  for  the  plaintiffs  as  hereinbefore  stated. 

4th.  Because  the  court  erred  in  the  remarks  and  instructions 
which  he  made  and  gave  to  the  jury  in  sending  them  back  to 


596  CONDUCT   OF   THE   TRIAL.  [ChAP.    IV, 

their  room  after  the  first  polling,  and  also  erred  in  giving  them 
any  instruction  at  all  at  that  time. 

5th.  Because  the  court  erred  in  allowing  the  verdict  to  be 
entered  on  the  minutes.     *     *     * 

Jenkins,  J.,  delivering  the  opinion  of  the  court :  *  *  * 
When  the  verdict  was  returned  and  read,  plaintiffs'  counsel 
asked  that  the  jury  be  polled,  and  this  was  done.  One  of  the 
jury  answering  that  he  could  not  say,  whether  he  found  for 
plaintiffs  or  defendant,  the  court  declined  to  receive  the  verdict, 
and  remanded  them  to  their  room. 

They  came  a  second  time  into  court  with  the  same  verdict,  and 
were  again  polled.  Exception  is  taken  to  the  manner  in  which 
the  question  was  propounded  to  each  juror,  viz.;  "Do  you  find 
for  the  plaintiffs  or  the  defendant?"  The  better  form  of  ques- 
tion would  be,  (following  the  reading  of  the  verdict),  "What  say 
you,  Mr.  Juror,  is  that,  or  is  it  not  your  verdict  ? ' '  But  as  there 
is  no  complaint  in  this  case,  which  does  not  go  to  the  whole  ver- 
dict, we  think  the  question,  as  put,  equivalent,  and  therefore  over- 
rule the  exception. 

8th.  But  it  is  further  excepted  that  the  motion  for  a  new  trial 
should  have  been  sustained,  and  the  verdict  set  aside,  on  the 
ground  that  the  answers  made  on  the  polling  of  the  jury,  show 
that  the  verdict  was  not  unanimous. 

The  greater  number  of  the  jury  answered  simply  that  they 
found  for  the  defendant. 

Some  four  or  five  added,  either  "that  they  were  not  satisfied," 
or  "that  they  were  not  fully  satisfied,"  or  said,  "that  they  were 
not  satisfied,  but  with  the  lights  before  them,  they  found  for  the 
defendant. ' ' 

They  all,  however,  did  say  that  "they  found  for  the  defend- 
ant," which  was  the  verdict  read  in  the  court.  Is  it  requisite 
that  to  sustain  a  verdict,  that  a  juror  should  be  wholly  free  from 
doubt,  should  be  "fully  satisfied  with  it?"  If  so,  what  shall  be- 
come of  the  cases  turning  upon  a  preponderance  of  evidence? 
Where  the  preponderance  is  not  great,  shall  freedom  from  doubt 
be  exacted  ?    Are  such  cases  never  to  be  decided  ? 

In  this  case  the  jury  pursued  the  course  proper  in  the  absence 
of  clear  and  satisfactory  evidence:  they  left  the  parties  as  they 
found  them ;  they  conformed  to  the  ancient  maxim  of  the  law, 
"portior  est  conditio  dcfendcntis."  The  verdict  was  properly 
received  and  recorded.     *     *     * 


I 


Sec.  8.]  rigg  v.  cook.  597 

RIGG  V.  COOK. 

9  Illinois,  336.     [1847.] 

Treat,  J.  This  was  an  action  of  ejectment,  commenced  in  tlie 
St.  Clair  Circuit  Court,  on  the  23d  of  October,  1845,  by  John 
Cook  against  Rachel  Rigg,  for  the  recovery  of  the  southeast 
fractional  quarter  of  section  twenty-three,  and  the  north  frac- 
tional half  of  section  twenty-six,  in  township  one,  north  of  range 
eight  west,  containing  three  hundred  and  thirty-nine  acres,  and 
eighty-five  hundredths  of  an  acre.     *     *     * 

Before  the  jury  retired,  it  was  agreed  by  counsel,  that  the  jury 
might  seal  up  their  verdict  and  separate,  and  that  the  verdict 
might  afterwards  be  reduced  to  proper  form.  The  jury  accord- 
ingly made  up  a  sealed  verdict  as  follows:  "We,  the  jury,  find 
the  defendant  guilty,"  which  was  opened  the  next  morning  at 
ten  o'clock;  and  at  two  o'clock  of  the  same  day,  it  was  reduced 
to  form  by  the  plaintiff's  counsel,  to  which  the  defendant  made 
no  objection,  but  asked  that  the  jury,  which  had  not  then  been 
discharged  for  the  term,  might  be  polled ;  which  request  the 
court  denied,  and  the  defendant  excepted.  The  verdict,  as  finally 
entered,  finds  the  defendant  guilty  of  withholding  the  possession 
of  the  land  in  question  from  the  plaintiff,  who  is  entitled  to  an 
estate  in  fee  therein ;  except  as  to  the  part  claimed  by  Brown, 
Johnson,  and  Pulliam,  as  stated  in  the  evidence,  of  which  part 
the  defendant  is  not  guilty.  The  court  overruled  a  motion  for  a 
new  trial,  and  rendered  judgment  on  the  verdict.  The  defendant 
prosecuted  an  appeal  to  this  court.     *     *     * 

There  was  no  error  in  the  instructions  of  the  court.  The  law 
of  the  case  was  fairly  and  correctly  stated  to  the  jury. 

A  party  has  the  right  to  have  the  jury  polled  on  the  receipt 
of  the  verdict,  and  a  denial  of  the  right  is  error.^  Johnson  v. 
ITowe,  2  Gilm.  842.  It  makes  no  difference  whether  the  verdict 
is  brought  in  sealed,  or  delivered  ore  tenus  by  the  foreman.  Fox 
V.  Smith,  3  Cowen,  23 ;  Jackson  v.  Hawks,  2  Wend.  619.  A  direc- 
tion to  the  jury  to  seal  up  their  verdict  and  separate,  does  not 
dispense  with  their  personal  attendance  in  court,  when  the  ver- 
dict is  opened ;  and  if  any  of  them  dissent,  the  verdict  cannot  be 

1  It  is  held  in  several  states  that  rests  in  the  sound  discretion  of  the 
a  poll  of  the  jury  cannot  be  de-  trial  judge.  See  Blum  v.  Pate,  20 
manded   as   a  matter  of  right,  but      Cal.  69. 


598  CONDUCT   OF    THE   TRIAL.  [ChAP.    IV. 

received.  Koot  v.  Sherwood,  6  Johns.  68 ;  Lawrence  v.  Stearns, 
11  Pick.  501.  After  a  verdict  is  received  and  the  jury  dis- 
charged, the  control  of  the  jury  over  the  case  is  at  an  end,  and 
they  cannot  be  recalled  to  alter  or  amend  the  verdict.  Seargent 
V.  The  State,  11  Ohio,  472.  When  the  verdict  was  opened  in  the 
present  ease,  the  appellant  might  have  insisted  on  her  right  to 
have  the  jurors  severally  asked  if  it  was  their  verdict ;  but  omit- 
ting to  exercise  the  right  then,  she  was  precluded  from  doing  it 
afterwards.  As  we  understand  the  bill  of  exceptions,  the  ver- 
dict was  received  by  the  court  in  the  presence  of  the  jury ;  and 
the  jury  were  then  discharged  from  the  case,  with  an  existing 
stipulation  of  counsel,  that  the  verdict  might  afterwards  be  re- 
duced to  form  and  entered  of  record.  The  right  of  the  appel- 
lant to  have  the  jury  polled  was  gone,  for  the  reason  that  the 
control  of  the  jury  over  their  verdict  had  ceastd.  She  had  still 
the  right  to  insist  that  the  real  finding  of  the  jury  should  be 
pursued  in  putting  the  verdict  into  form.  No  objection  on  this 
score  was  taken,  and  could  not  with  any  show  of  propriety  have 
been ;  for  while  the  verdict,  as  returned  by  the  jury,  was  for  the 
whole  of  the  premises  claimed,  the  verdict  as  finally  entered  was 
but  for  a  part  of  the  premises.  This  modification  w^as  not  to  her 
prejudice. 

The  judgment  of  the  Circuit  Court  is  affirmed,  with  the  costs 
of  this  appeal. 

Judgment  affirmed. 


KOON  V.  INSURANCE  CO. 

104  U.  S.  106.      [1881.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Illinois. 

This  is  an  action  of  debt  brought  by  the  Phoenix  Mutual  Life 
Insurance  Company  against  Henry  H.  Koon  as  principal,  and 
the  other  defendants  as  sureties,  on  a  bond  in  the  penal  sum 
of  $10,000,  conditioned  for  the  faithful  performance  of  his  duties 
as  agent  of  the  company.    The  defendants  pleaded  ???7  deMt. 

It  appears  from  the  bill  of  exceptions  that  upon  the  retire- 
ment of  the  jury  "it  was  agreed  by  the  parties  that  the  jury 
might,  when  they  had  agreed  upon  their  verdict,  if  the  court 


I 


Sec.  8.]  koon  v.  insurance  co.  599 

should  not  then  be  in  session,  sign  and  seal  the  same,  and  deliver 
the  same  to  the  officer  in  charge  and  disperse." 

The  jury,  having  agreed  upon  their  verdict  when  the  court 
was  not  in  session,  signed,  sealed,  and  delivered  it  to  the  officer 
in  charge,  who  returned  it  into  court,  where  it  was  ordered  to  be 
opened  and  read.  It  was  in  the  following  words  and  figures,  to 
wit:  "We,  the  jury,  find  for  the  plaintiffs,  and  fix  the  sum  due 
on  the  bond  at  $7500,  and  damages  at  one  cent."  The  envelope 
in  which  it  was  enclosed  also  contained  another  paper,  on  which 
was  the  following  writing:  "The  undersigned  jury  signed  the 
enclosed  verdict  as  a  compromise,  being  the  largest  amount  we 
can  get;"  signed  by  five  of  the  jurors. 

Thereupon  the  court  directed  the  clerk  to  put  the  verdict  in  the 
following  form:  "We,  the  jury,  find  the  issue  for  the  plaintiff, 
and  find  the  debt  ten  thousand  dollars,  and  assess  the  damages 
at  seven  thousand  five  hundred  dollars;  the  said  debt  to  be  dis- 
charged on  payment  of  said  damages." 

To  which  action,  in  ordering  the  verdict  to  be  opened  and  read 
in  the  absence  of  the  jury  and  in  changing  its  form,  the  de- 
fendants excepted,  and  moved  the  court  to  correct  the  entry  so 
as  to  make  it  conform  to  the  verdict  as  returned.  The  motion 
was  overruled,  and  judgment  rendered  on  the  verdict  as  recorded. 
The  defendants  sued  out  this  writ  of  error. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  stipulation  "that  the  jury  might,  when  they  had  agreed 
on  their  verdict,  if  the  court  should  not  then  be  in  session,  sign 
and  seal  the  same,  and  deliver  the  same  to  the  officer  in  charge 
and  disperse,"  was  equivalent  to  an  agreement  by  both  parties, 
on  the  retirement  of  the  jury,  that  the  court  might,  when  the 
sealed  verdict  was  handed  in  by  the  officer,  open  it  in  the  absence 
of  the  jury  and  reduce  it  to  proper  form,  if  necessary.  The 
stipulation  was  also  a  waiver  of  the  right  to  poll  the  jury  if  they 
should  not  be  in  court.  ^ 

The  issue  to  be  tried  was  on  a  plea  of  nil  debit.  This  admitted 
the  execution  of  the  bond,  and  required  the  jury  only  to  find  the 

1  Savage,    Ch.    J.,    in    Jackson    v.  Notwithstand    the    practice    of    the 

Hawks,   2   Wend.   619:      "It  is  the  judge,  the  counsel  for  the  defendant 

undoubted  right  of  a  party  to  poll  jiositively   states  that  there   was  no 

a   jury    on   their   bringing   in   their  agreement    waiving    the    right,    and 

verdict,  and  he  cannot  be  deprived  that  he  would  not  have  consented  to 

of    it,    but    by   his    express    assent.  a    sealed    verdict   had    he    supposed 


600  CONDUCT   OP    THE   TRIAL.  [ChAP,    IV. 

amount  due.  If  anything  was  found  to  be  due,  the  law  fixed 
the  form  of  the  verdict  and  judgment.  The  jury  found  there 
was  $7500  due  on  the  debt  and  one  cent  damages  for  the  deten- 
tion. That  finding,  reduced  to  proper  form,  was  in  favor  of 
the  plaintiff  for  the  penalty  of  the  bond,  to  be  discharged  on 
payment  of  $7500.  All  the  court  did  was  to  enter  the  verdict 
in  that  form.  In  doing  so  it  only  gave  legal  effect  to  what  the 
jury  unmistakably  found.  This  was  allowable,  both  under  sec- 
tion 954  of  the  Revised  Statutes  and  the  Practice  Act  of  Illinois. 

Judgment  affirmed. 


HUMPHRIES  V.  DISTRICT  OF  COLUMBIA. 

174  V.  8.  190.     [1S98.] 

This  case  is  before  the  court  on  error  to  the  Court  of  Appeals 
of  the  District  of  Columbia.  The  facts  are  these :  On  May  22, 
1896,  the  plaintiff  in  error  filed  an  amended  declaration  in  the 
Supreme  Court  of  the  District,  claiming  damages  from  the  de- 
fendant, now  defendant  in  error,  on  account  of  injuries  caused 
by  a  defective  condition  of  the  bridge  between  Washington  and 
Anacostia — a  condition  resulting  from  the  negligence  of  the  de- 
fendant. A  jury  was  empaneled,  trial  had,  and  the  case  sub- 
mitted to  it  on  November  30,  with  instruction  to  return  a  sealed 
verdict.  The  instructions  and  the  verdict  were  returned  on  the 
morning  of  December  1,  and  were  in  the  following  form : 

' '  When  the  jury  agree  upon  a  verdict,  write  it  out,  all  of  the 
jurors  sign  it,  date  it,  seal  it  up  and  deliver  to  the  foreman,  to 
be  delivered  in  open  court  on  the  1st  day  of  December,  1896,  and 
in  the  presence  of  all  who  sign  it. 

Elizabeth  M.  Humphries 

V.  No.  38281.    At  Law. 

The  District  of  Columbia. 

Dated  November  30,  1896. 

"We,  the  jurors  sworn  to  try  the  issue  joined  in  the  above- 
entitled  cause,  find  said  issue  in  favor  of  the  plaintiff,  and  that 

that  he  thereby  would  lose  the  right  verdict  must  be  set  aside;   costs  to 

of    polling    the    jury.      The    party,  abide  the  event." 

therefore,   not   having  expressly   as-  See    also    Bishop    v.    Mogler,    33 

sented,  and  having  been  deprived  of  Kan.   145. 

a  right  to  which  he  was  entitled,  the 


Sec.  8.]  Humphries  v.  dist.  of  Columbia.  601 

the  money  payable  to  him  by  the  defendant  is  the  sum  of  seven 
thousand  dollars  and  —  cents  ($7000.00). 
All  sign: 

Michael  Keegan,  etc. 
[Names  omitted.] 
The  proceedings  on  December  1  are  thus  stated  in  the  record : 
"Come  here  again  the  parties  aforesaid  in  manner  aforesaid, 
and  the  same  jury  return  into  court,  except  John  T.  Wright,  who 
does  not  appear,  and  having  said  sealed  verdict  in  his  possession 
as  foreman  sends  the  same  to  the  court  by  Dr.  McWilliams,  who 
delivers  the  same  to  the  court  with  the  statement  that  the  said 
John  T.  Wright  is  ill  and  confined  to  his  bed  and  physically  un- 
able to  appear  in  court ;  that  he,  said  McWilliams,  is  his  attend- 
ing physician,  and  as  such  received  from  said  Wright  said  sealed 
verdict  with  direction  to  deliver  it  to  the  court ;  whereupon  the 
defendant,  by  its  counsel,  objected  to  the  reception,  opening  and 
reading  of  said  sealed  verdict ;  whereupon,  in  answer  to  the  ques- 
tions of  the  court,  the  remaining  jurors  severally  on  their  oath 
say  that  they  severally  signed  said  verdict,  and  that  they  saw 
said  John  T.  Wright  sign  the  same,  and  that  the  name  'John  T. 
Wright,'  signed  thereto,  is  in  his  handwriting;  'thereupon  the  re- 
maining jurors  on  their  oath  say  they  find  said  issue  in  favor  of 
the  plaintifi^  and  assess  her  damages  by  reason  of  the  premises 
at  seven  thousand  dollars  ($7000).' 

"The  counsel  for  the  defendant  ask  that  the  jury  be  polled, 
which  is  done,  and  each  of  said  remaining  jurors  on  his  oath 
says  that  he  finds  said  issue  in  favor  of  the  plaintiff  and  assess 
her  damages  by  reason  of  the  premises  at  $7000." 

Upon  this  verdict  a  judgment  was  entered.  Proceedings  in 
error  were  taken,  but  were  dismissed  by  the  Court  of  Appeals 
on  account  of  a  failure  to  have  the  bill  of  exceptions  prepared 
in  time.  Thereafter,  and  at  a  succeeding  term,  the  defendant 
filed  a  motion  to  vacate  the  judgment  on  the  ground  that  there 
was  no  valid  verdict,  which  motion  was  overruled.  On  appeal  to 
the  Court  of  Appeals  this  decision  was  reversed  and  the  case  re- 
manded, with  instructions  to  vacate  the  judgment,  to  set  aside 
the  verdict  and  award  a  new  trial.  12  App.  D.  C.  122.  This 
ruling  was  based  on  the  proposition  that  the  verdict  was  an  abso- 
lute nullity,  and  therefore  the  judgment  resting  upon  it  void, 
and  one  which  could  be  set  aside  at  any  subsequent  term. 


I 


602  CONDUCT   OP    THE   TRIAL.  [ChAP.    IV. 

Mr.  Justice  Brewer,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

The  single  question  presented  by  the  record,  the  right  to  review 
which  is  sustained  by  Phillips  v.  Negley,  117  U.  S.  665,  is  whether 
the  verdict,  returned  under  the  circumstances  described,  was  an 
absolute  nullity,  or,  at  least,  so  far  defective  that  no  valid  judg- 
ment could  be  entered  upon  it.  Such  is  the  contention  of  the 
defendant.  On  the  contrary,  the  plaintiff  insists  that  whatever 
irregularities  may  have  occurred,  or  be  apparent  in  the  pro- 
ceedings, they  are  simply  matters  of  error,  to  be  corrected  on 
direct  proceedings  within  the  oi  dinary  time,  and  in  the  customary 
manner  for  correcting  errors  occurring  on  a  trial.  Is  the  defect 
or  irregularity  disclosed  a  mere  matter  of  error  or  one  which 
affects  the  jurisdiction?  The  opinion  of  the  Court  of  Appeals, 
announced  by  Mr.  Justice  Morris,  is  an  exhaustive  and  able  dis- 
cussion of  the  question,  arriving  at  the  conclusion  that  the  verdict 
was  an  absolute  nullity,  and  therefore  the  judgment,  based  upon 
it,  one  that  could  be  set  aside,  not  merely  at  the  term  at  which 
it  was  rendered,  but  at  any  subsequent  term. 

While  appreciating  fully  the  strength  of  the  argument  made 
by  the  learned  judge,  we  are  unable  to  concur  in  the  conclu- 
sions reached.  That  the  verdict  returned  expressed  at  the  time 
it  was  signed  the  deliberate  judgment  of  the  twelve  jurors,  can- 
not be  questioned.  That  it  remained  the  judgment  of  the  eleven 
at  the  time  it  w^as  opened  and  read  is  shown  by  the  poll  that  was 
taken,  and  that  it  was  still  the  judgment  of  the  absent  juror  at 
the  time  he  forwarded  it  to  the  court  is  evident  from  the  testi- 
mony. So  the  objection  runs  to  the  fact  that  at  the  time  the 
verdict  was  opened  and  read  each  of  the  twelve  jurors  was  not 
polled,  and  each  did  not  then  and  there  assent  to  the  verdict  as 
declared.  That  generally  the  right  to  poll  a  jury  exists  may  be 
conceded.  Its  object  is  to  ascertain  for  a  certainty  that  each  of 
the  jurors  approves  of  the  verdict  as  returned ;  that  no  one  has 
been  coerced  or  induced  to  sign  a  verdict  to  which  he  does  not 
fully  assent.  It  is  not  a  matter  which  is  vital,  is  frequently  not 
required  by  litigants;  and  while  it  is  an  undoubted  right  of 
either,  it  is  not  that  which  must  be  found  in  the  proceedings  in 
order  to  make  a  valid  verdict.  Take  the  case  suggested  on  argu- 
ment. Supposing  the  twelve  jurors  are  present,  and  the  defeated 
party  insists  upon  a  poll  of  the  jury  and  that  right  is  denied, 
can  it  be  that  a  verdict  returned  in  the  presence  of  the  twelve  by 


Sec.  8.]  Humphries  v.  dist.  op  Columbia.  603 

the  foreman,  without  dissent,  is  by  reason  of  such  denial  an  abso- 
lute nullity?  Is  not  the  denial  mere  error,  and  not  that  which 
goes  to  the  question  of  jurisdiction  ?  There  are  many  rights  be- 
longing to  litigants — rights  which  a  court  may  not  properly 
deny,  and  yet  which  if  denied  do  not  oust  the  jurisdiction  or 
render  the  proceedings  absolutely  null  and  void. 

The  line  of  demarcation  between  those  rulings  which  are  sim- 
ply erroneous  and  those  which  vitiate  the  result  may  not  always 
be  perfectly  clear,  and  yet  that  such  demarcation  exists  is  con- 
ceded. This  ruling  of  the  trial  court,  conceding  it  to  be  error, 
is  on  the  hither  side  of  this  line,  and  could  only  be  taken  advan- 
tage of  by  proceedings  in  error.  It  is  not  so  vital  as  to  make  the 
verdict  a  nullity  or  the  judgment  entered  thereon  void.  Sup- 
pose, after  the  jury,  at  the  end  of  a  protracted  trial,  have  agreed 
upon  the  verdict  and  come  into  court  to  announce  it,  and  after 
it  has  been  read  in  open  court  but  before  a  poll  can  be  had  one 
of  the  jurors  is  suddenly  stricken  dead,  can  it  be  that  the  whole 
proceeding  theretofore  had  become  thereby  a  nullity?  Can  it 
be  that  after  each  of  the  jurors  has  signed  the  verdict  and  after 
it  has  been  returned  and  each  is  present  ready  to  respond  to  a 
poll,  the  mere  inability  to  complete  the  poll  and  make  a  personal 
appeal  to  each  renders  the  entire  proceedings  of  the  trial  void  ? 
We  are  unable  to  assent  to  such  a  conclusion.  The  right  to  poll 
a  jury  is  certainly  no  more  sacred  than  the  right  to  have  a 
jury,  and  under  many  statutes  a  trial  of  a  case,  in  which  a  jury 
is  a  matter  of  right,  without  a  waiver  thereof,  has  again  and  again 
been  held  to  be  erroneous  and  subject  to  correction  by  proceed- 
ings in  error.  But  it  is  also  held  that  an  omission  from  the  record 
of  any  such  waiver  is  not  fatal  to  the  judgment. 

"The  fourth  alleged  error  is  to  the  effect  that  the  judgment  in 
the  Kansas  court  was  void  because  the  case  was  tried  by  the 
court  without  the  waiver  of  a  trial  by  jury  entered  upon  the 
journal.  Whatever  might  be  the  effect  of  this  omission  in  a  pro- 
ceeding to  obtain  a  reversal  or  vacation  of  the  judgment,  it  is 
very  certain  that  it  does  not  render  the  judgment  void.  At  most 
it  is  only  error,  and  cannot  be  taken  advantage  of  collaterally." 
Maxwell  v.  Stewart,  21  Wall.  71.  "A  trial  by  the  court,  without 
the  waiver  of  a  jury,  is  at  most  only  error."  Same  case,  22 
Wall.  77. 

If  a  trial  without  a  jury,  when  a  jury  is  a  matter  of  right  and 
no  waiver  appears  of  record,  is  not  fatal  to  the  judgment,  a 


604  CONDUCT   OP   THE   TRIAL,.  [ChAP.    IV. 

fortiori  the  minor  matter  of  failing  to  poll  the  jury  when  it  is 
clear  that  the  verdict  has  received  the  assent  of  all  the  jurors, 
cannot  be  adjudged  a  nullity,  but  must  be  regarded  as  simply 
an  error,  to  be  corrected  solely  by  direct  proceedings  in  review. 
See  in  reference  to  the  distinction  between  matters  of  error  and 
those  which  go  to  the  jurisdiction,  the  following  cases :  Ex  parte 
Bigelow,  113  U.  S.  328 ;  In  re  Coy,  127  U.  S.  731 ;  In  re  Belt, 
159  U.  S.  95 ;  In  re  Eckart,  166  U.  S.  481. 

We  are  of  opinion  that  the  defect  complained  of  was  merely  a 
matter  of  error,  and  does  not  render  the  verdict  a  nullity. 

The  judgment  of  the  Court  of  Appeals  will  therefore  he  re- 
versed and  the  case  remanded  ivith  instructions  to  affirm  the 
judgment  of  the  Supreme  Court  of  the  District  of  Columbia. 


DOUGLASS  V.  TOUSEY. 

2  Wendell  (N.  Y.),  352.     [1829.] 

Marcy,  J.  *  *  *  2.  The  defendant  also  asks  to  have  the 
verdict  set  aside,  on  the  ground  of  irregularity.  It  was  late  in 
the  evening  when  the  cause  was  committed  to  the  jury.  The 
judge,  without  the  express  consent  of  the  counsel,  directed  them 
to  seal  up  their  verdict  and  bring  it  into  court  the  next  morn- 
ing. They  presented  their  sealed  verdict,  according  to  the  direc- 
tion of  the  court ;  and  when  polled,  one  of  them  refused  to  agree 
to  it.  When  asked  why  he  signed  the  verdict,  he  said  he  was 
unwell  and  unable  to  sit  up  all  night.  The  judge  sent  the  jury 
out  again,  and  they  finally  brought  in  the  same  verdict  which 
they  had  signed  and  sealed  the  evening  previous.  The  juror 
who  had  dissented  from  the  sealed  verdict  stated  to  the  court 
that  he  had  received  such  explanation  of  the  testimony  from  his 
fellows  that  he  was  satisfied  with  the  verdict.  The  ancient  strict- 
ness in  regard  to  the  conduct  of  jurors  has  of  late  years  been 
somewhat  relaxed.  In  the  case  of  The  People  v.  Douglass  (4 
Cowen,  26),  it  is  said  by  the  chief  justice,  that  "In  a  civil  suit 
at  this  day,  it  is  perfectly  clear  that  the  separation  of  the  jury 
without,  and  even  contrary  to  the  direction  of  the  court,  would 
not,  of  itself,  warrant  the  court  in  setting  aside  their  verdict." 
Where  there  is  no  evidence  or  suspicion  of  abuse  while  the  jury 


Sec.  8.]  jackson  v.  Williamson.  605 

are  separated,  their  verdict  will  not  be  disturbed.     (1  Cowen, 
221;  5  id.  283.) 

In  the  case  of  Bunn  v.  Hoyt,  3  Johns  R.  255,  a  question  arose 
very  similar  to  that  now  before  the  court.  The  .jury  retired, 
deliberated  several  hours,  sealed  their  verdict,  separated,  and 
the  next  morning  brought  it  into  court.  On  being  polled,  one  of 
them  disagreed  to  it.  The  judge  (Ch.  J.  Kent)  sent  them  out 
again,  and  the  disagreeing  juror  ultimately  assented  to  the  ver- 
dict, which  had  first  been  brought  in  under  seal.  It  is  not  stated 
in  the  case  of  Bunn  v.  Hoyt,  that  the  bringing  in  a  sealed  ver- 
dict was  by  the  direction  of  the  judge,  or  by  the  acquiescence  of 
the  counsel  for  the  parties,  but  it  probably  was  so.  In  this  case, 
the  trial  closed  at  a  late  hour  at  night,  and  the  judge  directed 
the  jury  to  seal  their  verdict,  and  gave  them  permission  to 
separate.  There  being  no  objections  to  this  course  on  the  part 
of  the  defendant,  he  must  be  deemed  to  have  tacitly  assented  to 
it.  The  verdict  cannot,  therefore,  be  set  aside  for  the  alleged 
irregularity  in  receiving  it.^ 


JACKSON  V.  WILLIAMSON. 

2  Durnford  &  East,  281.     [1788.] 

A  rule  had  been  obtained  by  Lambe  to  show  cause  why  the 
postea  in  this  cause  should  not  be  amended,  by  inserting  the  sum 
of  £61  instead  of  £30  agreeable  to  the  real  finding  of  the  jury.  It 
was  an  action  of  trespass  against  the  sheriff  of  Durham  for  hav- 
ing unjustly  sold  a  coal  keel  or  lighter.  It  was  proved  at  the 
trial  that  the  sheriff  had  actually  sold  this  for  £31,  but  several 
of  the  witnesses  on  the  part  of  the  plaintiff  proved  it  to  have 
been  worth  £60;  the  jury  gave  their  verdict  for  £30  damages, 
and  now  the  plaintiff  produced  an  affidavit  made  by  all  the  jury- 
men, saying  that  they  meant  to  give  the  £30  as  damages  for  the 
seizing  and  detaining  the  vessel,  over  and  above  the  £31  for  which 
it  appeared  that  the  vessel  had  been  actually  sold;  and  that 
they  conceived  that  the  prothonotary  would  of  course  add  the 
£30  to  the  £31  and  thereby  make  the  whole  sum  of  £61  which 
the  jury  intended  to  give. 

1  Accord,  Devereux  v.  Cotton  ing  reasons  why  the  jury  should  be 
Press  Co.,  14  S.  C.  396.  Contra,  discharged  from  further  considera- 
Kramer  v.  Kiste,  187  Pa.  227,  giv-       tion  of  the  case. 


606  CONDUCT    OF   THE   TRIAL.  [  ChAP.  IV. 

Chambre  showed  cause,  and  contended  that  it  would  be  a  very 
dangerous  practice,  if  the  court  were  to  give  way  to  such  au 
application  in  any  instance.  If  there  is  any  ambiguity  in  a  ver- 
dict, it  ought  to  be  inquired  into  and  explained  at  the  time.  The 
verdict  in  this  case  was  conceived  in  very  plain  terms;  and 
though  perhaps  the  jury  ought  to  have  given  the  £31,  yet  the 
difference  is  too  trilling  to  be  attended  to. 

Law  and  Lambe,  contra,  said  it  was  entirely  owing  to  the 
accident  of  the  plaintiff's  counsel  happening  to  be  out  of  court, 
when  the  verdict  was  delivered,  that  the  mistake  was  not  cor- 
rected at  the  time,  but  it  was  so  the  very  first  opportunity  after- 
wards. Here  the  mistake  spoke  for  itself.  It  was  impossible  the 
jury  could  intend  to  give  less  than  what  it  appeared  the  sheriff 
had  actually  received  into  his  hands  by  the  sale.  The  seizure  of 
the  vessel,  which  was  without  any  color,  had  been  a  great  detri- 
ment to  the  plaintiff,  who  would  not  only  be  put  to  a  considerable 
expense  in  procuring  another,  but  had  lost  the  intermediate 
profits;  and  as  the  jury  had  unanimously  concurred  in  the  ex- 
planation of  their  verdict,  they  conceived  that  no  inconveniences 
need  be  apprehended  from  acceding  to  it  in  such  a  case  as  this. 

The  court  refused  the  application,  saying  that  it  would  intro- 
duce a  very  dangerous  practice  if  they  were  to  admit  such  au 
affidavit  as  the  one  offered.  They  said  that  they  laid  no  stress 
upon  its  being  made  by  all  the  jury:  if  it  could  be  made  at  all, 
upon  the  same  principle  it  might  as  well  be  made  by  some.  If 
any  doubt  had  arisen  as  to  the  meaning  of  the  jury,  if  they  had 
found  a  sum  inadequate  to  the  value  proved,  the  proper  time  for 
requiring  an  explanation  was  at  the  trial.  It  was  too  late  now ; 
such  a  practice  would  be  productive  of  infinite  mischief ;  and  it 
was  better  that  the  present  plaintiff  should  suffer  an  inconven- 
ience, than  that  such  a  rule  should  be  introduced. 

Ride  discharged.'^ 


CAPEN  v.  INHABITANTS  OF  STOUGHTON. 

16  Gray,  364.     [I860.]  1^| 

Petition  entered  at  April  term,  1858,  of  the  Court  of  Common 
Pleas  in  Norfolk,  setting  forth  that  in  November,  1856,  a  town 

1  Accord,   Walters   v.   Junkins,   14 
Sergt  &  Rawle,  414. 


Sec.  8.]  capen  v.  inhabitants  of  stoughton.  607 

way  was  laid  out  over  the  land  of  the  petitioners  in  Stoughton, 
and  damages  assessed  therefor,  by  which  the  petitioners  were 
aggrieved,  and  the  county  commissioners,  upon  their  application 
and  after  due  notice,  issued  a  warrant  for  a  reassessment  of  the 
damages  by  a  jury;  that  a  jury  was  impaneled  and  the  case 
tried  before  them ;  that  blank  forms  of  verdict  for  the  petitioners 
and  for  the  respondents  were  handed  to  them  by  the  sheriff; 
that  the  jury  agreed  upon  and  filled  out  a  verdict  for  the  peti- 
tioners, but  through  mistake  omitted  to  sign  it,  and  signed  a 
verdict  for  the  respondents;  that  both  verdicts  were  sealed  up 
in  one  envelope  and  returned  into  the  Court  of  Common  Pleas ; 
that  the  petitioners  received  information  from  some  of  the  jurors 
that  the  verdict  returned  was  in  their  favor,  and  so  told  their 
counsel,  and  he,  relying  on  this  information,  without  inspecting 
the  verdict,  moved  the  court  at  December  term,  1857,  to  accept  it, 
and  it  was  accepted  and  ordered  to  be  certified  to  the  county 
commissioners.  The  prayer  of  the  petition  was  that  this  judg- 
ment should  be  vacated,  the  case  brought  forward  on  the  docket, 

and  leave  given  the  petitioners  to  sue  out  a  writ  of  review. 
*     *     * 

A  hearing  was  had  in  the  Court  of  Common  Pleas  at  April  term, 
1859,  at  which  Aiken,  J.,  against  the  objection  of  the  respond- 
ents, allowed  three  of  the  persons  who  had  composed  the  sheriff's 
jury  to  testify  that,  after  agreeing  on  a  verdict  for  the  peti- 
tioners and  filling  up  a  blank  form  accordingly,  the  jury  by  mis- 
take signed  the  form  of  verdict  for  the  respondents ;  and  ordered 
the  former  case  t(  be  brought  forward  on  the  docket,  and  the 
acceptance  of  the  verdict  to  be  vacated  as  prayed  for.  The 
respondents  allege  A  exceptions  to  the  admission  of  the  testimony 
of  the  jurors. 

BiGELow,  C.  J.  AVe  think  this  case  differs  essentially  from 
those  cited  by  the  Eounsel  for  the  respondents,  in  which  it  has 
been  held,  that  th  i  testimony  of  jurors  is  inadmissible  in  sup- 
port of  a  motion  to  set  aside  a  verdict  on  the  ground  of  mistake, 
irregularity  or  misconduct  of  the  jury,  or  of  some  one  or  more  of 
the  panel.  It  has  been  settled  upon  sound  considerations  of 
public  policy  that  mistake  of  the  testimony,  misapprehension  of 
the  law,  error  in  computation,  irregular  or  illegal  methods  of 
arriving  at  damages,  unsound  reasons  or  improper  motives,  mis- 
conduct during  the  trial  or  in  the  jury  room,  cannot  be  shown 
by  the  evidence  of  the  jurors  themselves,  as  the  ground  of  dis- 


608  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

turbing  a  verdict,  duly  rendered.  Chadbourn  v.  Franklin,  5 
Gray,  315,  and  eases  there  cited.  One  of  the  strongest  cases  on 
this  point  in  the  English  books  is  Bridgewood  v.  Wynn,  1  Hai*. 
&  Wol.  574.  In  all  those  eases,  however,  it  will  be  found  upon 
examination  that  an  inquiry  was  attempted  into  the  conduct  of 
jurors  during  the  progress  of  the  trial,  or  while  they  were 
engaged  in  their  deliberations  upon  the  case,  or  in  making  up 
the  verdict  to  which  they  finally  agreed.  But  in  the  present 
case  the  mistake  which  is  proved  by  the  testimony  of  the  jurors 
is  of  a  different  character.  It  is  not  one  connected  with  the 
consultations  of  the  jury,  or  the  mode  in  which  the  verdicts 
were  arrived  at  or  made  up.  No  fact  or  circumstance  is  offered 
to  be  proved,  which  occurred  prior  to  the  determination  of  the 
case  by  the  jury  and  their  final  agreement  on  the  verdict  which 
was  to  be  rendered  by  them.  But  the  evidence  of  the  jurors  is 
offered  only  to  show  a  mistake,  in  the  nature  of  a  clerical  error, 
which  happened  after  the  deliberations  of  the  jury  had  ceased, 
and  they  had  actually  agreed  on  their  verdict.  The  error  con- 
sisted, not  in  making  up  their  verdict  on  wrong  principles  or  on 
a  mistake  of  facts,  but  in  an  omission  to  state  correctly  in  writing 
the  verdict  to  which  they  had,  by  a  due  and  regular  course  of 
proceeding,  honestly  and  fairly  arrived. 

The  case  of  Cogan  v.  Ebden,  1  Bur.  383,  and  2  Keny.  24,  is 
quite  analogous  to  the  present.  There  two  different  issues  were 
joined  as  to  a  right  of  way  over  two  separate  closes.  The  foreman 
of  the  jury  gave  in  the  verdict  as  a  general  verdict  for  the  defend- 
ant on  both  issues.  The  court  received  the  affidavits  of  eight 
of  the  jurors,  which  were  uncontradicted,  "that  it  was  the  mean- 
ing and  intention  of  the  whole  jury  to  find  the  former  issue  for 
the  defendant  and  the  latter  for  the  plaintiff,  and  that  this  mis- 
take was  discovered  by  them  an  hour  afterwards."  On  this  evi- 
dence the  court  held  that  this  "was  a  mistake  arising  from  the 
jury's  being  unacquainted  with  business  of  this  nature;  and  that 
it  was  agreeable  to  right  and  justice  that  the  mistake  should  be 
rectified." 

No  considerations  of  public  policy  require  that  the  uncon- 
tradicted testimony  of  jurors  to  establish  an  error  of  this  nature 
should  be  excluded.  Its  admission  does  not  in  any  degree  in- 
fringe on  the  sanctity  with  which  the  law  surrounds  the  delibera- 
tions of  juries,  or  expose  their  verdicts  to  be  set  aside  through 
improper  influences,  or  upon  grounds  which  might  prove  danger- 


Sec.  8.]  mayor  of  devizes  v.  clark.  609 

ous  to  the  purity  and  steadiness  of  the  administration  of  public 
justice.  On  the  contrary,  it  is  a  case  of  manifest  mistake,  of  a 
merely  formal  and  clerical  character,  which  the  court  ought  to 
interfere  to  correct,  in  order  to  prevent  the  rights  of  the  parties 
from  being  sacrificed  by  a  blind  adherence  to  a  rule  of  evidence, 
in  itself  highly  salutary  and  reasonable,  but  which  upon  prin- 
ciple has  no  application  to  the  present  case. 

Order  affirmed.^ 


(b)   General  Verdicts. 
MAYOR  OF  DEVIZES  v.  CLARK. 

3  Adolphus  &  Ellis,  506.     [1835.] 

Action  on  the  case.  The  plaintiffs  declared  that  they  were 
possessed  of  a  market,  on  Thursdays,  at  Devizes,  and  that  it  was 
the  duty  of  persons  who  sold  butcher 's  meat  at  Devizes  on  market 
days  to  expose  it  for  sale  on  certain  stalls  appropriated  by  the 
plaintiffs  to  that  purpose,  paying  the  plaintiffs  a  reasonable  sum, 
to-wit.  Is.  6d.,  for  the  use  of  each  stall,  and  not  to  expose  meat 
for  sale  on  such  market  days  in  any  place  in  Devizes  other  than 
the  plaintiffs'  stalls;  and  that  the  defendant,  not  regarding  his 
duty,  on  divers  market  days  sold  butcher 's  meat  in  his  own  house 
in  Devizes,  and  refused  to  pay  the  plaintiffs  for  the  use  of  their 
stalls.     Plea,  not  guilty. 

On  the  trial  before  Williams,  B.,  at  the  Salisbury  Lent  assizes, 
1834,  the  plaintiffs  proved  that  they  were  possessed  of  an  ancient 
market;  that,  with  very  few  exceptions,  all  persons  selling 
butcher's  meat  on  Thursdays  in  the  town  had  always  sold  it  at 
the  plaintiffs'  stalls,  paying  stallage  for  the  same;  and  that,  in 
1803  and  1816,  actions  having  been  brought  against  certain 
persons  for  selling  butcher's  meat  on  market  days  at  their  own 
houses  in  Devizes,  instead  of  the  plaintiffs'  stalls,  the  defendants 
in  those  actions  had  allowed  judgment  to  go  by  default  and  had 
paid  the  costs.  For  the  present  defendant  it  was  contended  that 
the  possession  of  an  ancient  market  (which  it  was  admitted  the 

1  And  so  in  Peters  v.  Forgarty,  55       made  a  mistake  in  announcing  the 
N.    J.    L.    3S6,    where    the    foreman       verdict. 
H.  T.  p.— 39 


610  CONDUCT    OP   THE   TRIAL,  [ChAP.    IV. 

plaintiffs  had  proved)  did  not  necessarily  carry  with  it  the  right 
to  prevent  persons,  who  lived  within  the  town,  from  selling  at 
their  own  houses  on  market  days;  Mosley  v.  Walker  (7  B.  &  C. 
40)  ;  that  a  right  to  prevent  such  dealings  within  the  town  could 
only  be  established  by  proof  of  a  custom  to  that  extent;  and 
that  the  evidence  in  the  present  case  was  insufficient  to  establish 
the  custom,  there  appearing  an  instance  or  two  in  which  a 
butcher  had  dealt  at  his  own  house  on  market  days.  The  learned 
judge  told  the  jury  that,  as  it  was  still  a  matter  of  legal  doubt, 
whether  or  not  the  right  to  an  ancient  market  carried  with  it  the 
right  to  prevent  parties  from  selling  in  their  own  houses  within 
the  town  on  market  days,  and  as  the  plaintiffs'  right  to  an  ancient 
market  was  admitted,  he  wished  the  jury,  with  a  view  to  prevent 
further  discussion  between  the  parties,  to  find  expressly, ^  if 
they  thought  the  evidence  warranted  such  a  finding,  whether 
there  was  any  custom  in  Devizes  to  preclude  the  sale  of  butcher 's 
meat  on  market  days  in  any  part  of  the  town  except  on  the  plain- 
tiffs'  stalls.  Upon  this  some  of  the  jurj^men  entered  into  a  con- 
versation with  the  learned  judge,  from  which  it  appeared  that 
they  understood  the  effect  of  his  observations  as  to  the  point 
left  to  them.  After  retiring  for  a  short  time,  they  found  a 
verdict  for  the  plaintiffs  generally.  The  following  conversation 
then  took  place  between  the  learned  judge  and  the  foreman: 
"Williams,  B.  :  "  Then,  gentlemen,  you  find  that  in  your  judg- 
ment there  has  been  an  immemorial  usage  for  the  corporation  to 
demand  and  receive  this  stallage  for  meat  in  the  market,  and 
that  there  was  no  right  on  the  part  of  individuals  to  sell  in  a 
house  or  shop  out  of  the  market."  The  Foreman:  "That  is  not 
our  verdict ;  our  verdict  is  for  the  plaintiffs ;  the  right  to  the 
market  is  acknowledged  on  all  hands ;  of  course,  our  verdict  is  to 
say  that  the  defendant  had  not  a  right  to  do  what  he  is  charged 
with  doing."  AVilliams,  B.  :  "Then  you  further  find,  that  the 
defendant  had  no  right  ? ' '  The  Foreman  :  "  I  would  rather  not 
add  any  words. ' '  In  the  course  of  the  conversation,  the  learned 
judge  said  that  an  express  finding  might  prevent  further  litiga- 
tion, and  the  foreman  said  that  the  jury  had  been  guided  by 
the  remarks  of  his  lordship ;  but  that  they  desired  to  add  nothing 
to  their  verdict.     A  general  verdict  was  then  taken  for  the  plain- 

1  In    the   absence   of    statute,    the       findings    from    the    jury.      Peck    v. 
court  is  not  bound  to  request  special       Snyder,  13  Mich.  21. 


Sec.  8.]  mayor  of  devizes  v.  clark.  611 

tiffs.  In  Easter  term,  1834,  Merewether,  Serjt.,  obtained  a 
rule  to  show  cause  why  the  verdict  should  not  be  set  aside,  and  a 
new  trial  had  on  the  ground,  chiefly,  of  uncertainty  in  the  find- 
ing of  the  jury. 

Lord  Denman,  C.  J.  The  plaintiff  is  entitled  to  maintain  this 
verdict,  if  it  was  rightly  given,  and  there  is  nothing  to  show  that 
it  was  not.  It  appears  that  the  learned  judge  explained  to  the 
jury  that  the  question  of  law,  whether  the  mere  possession  of  the 
ancient  market  was  of  itself  enough  to  entitle  the  plaintiffs  to  a 
verdict,  was  a  question  attended  with  some  doubt;  but  told  them 
that  they  need  not  enter  into  that  question  now,  inasmuch  as 
there  was  direct  evidence  of  the  custom;  and  directed  them  to 
give  their  verdict  on  that  evidence,  if  they  deemed  it  sufficient 
to  establish  the  custom.  From  what  the  jury  said  before  they 
retired,  it  is  clear  that  they  understood  him.  Then  they  retire, 
and  afterwards  bring  in  a  verdict  for  the  plaintiffs.  The  only 
issue  which  they  could  so  find,  consistently  with  abstaining  from 
any  decision  on  the  legal  question,  was  the  issue  as  to  the  fact 
of  the  custom.  Then  the  judge,  with  the  purpose  of  making 
further  discussion  unnecessary,  told  them  that,  if  they  found  the 
fact  more  distinctly,  it  might  prevent  further  litigation.  A 
conversation  takes  place,  in  the  course  of  which  the  jury  say, 
"Of  course,  our  verdict  is  to  say  that  the  defendant  had  not  a 
right  to  do  what  he  is  charged  with  doing."  Now,  whether  the 
defendant  had  the  right,  depended,  at  that  stage  of  the  pro- 
ceedings, on  the  question  as  to  the  fact  of  the  custom;  finding 
the  one  was  finding  the  other.  It  is  true  that  the  jury  were  called 
on  to  speak  expressly  as  to  the  fact;  but  they  had  a  right  to 
refuse.  It  seems  to  me  that  they  have  merely  exercised  a  right 
belonging  to  them,  and  that  we  should  not  be  justified  in  dis- 
turbing their  verdict.^ 

2  Thayer,  Preliminary  Treatise  on  by  punishing  the  jury,  and  by  ^iv- 
Evidence,  p.  217:  "The  judgeis  ing  a  new  trial.  As  matter  of  his- 
often  compelled  special  verdicts.  It  tory,  we  know  that  the  jury,  on  the 
was  the  old  law  that  a  jury,  if  it  whole,  successfully  stood  out 
chose  to  run  the  risk  of  a  mistake,  against  these  attempts;  and  that  in 
and  so  of  the  punishment  by  at-  most  cases  their  right  was  acknowl- 
taint,  always  might  find  a  general  edged.  But  now  it  is  remarkable 
verdict.  But  the  judges  exerted  how  judges  and  legislatures  in  this 
pressure  to  secure  special  verdicts;  coimtry  are  unconsciously  traveling 
sometimes  they  ordered  them,  and  back  towards  the  old  result  of  con- 
enforced  the  instruction  by  threats,  trolling  the  jury,  by  requiring  spe- 


612 


CONDUCT    OF   THE   TRIAL. 

CLERK  V.  MARTIN. 


[Chap.  IV. 


1  Salkeld,  129.     [1702.] 

A  note  was  given  by  the  defendant,  whereby  he  promised  to 
pay  to  the  plaintiff,  or  order,  so  much  money.  The  plaintiff 
brought  an  action  on  this  note,  and  declared  on  the  custom  of 
merchants ;  and  likewise  laid  a  general  indebitatus  assumpsit,  and 
on  the  general  issue  entire  damages  were  given.  Upon  motion 
in  arrest  of  judgment  the  court  held  that  this  is  not  within  the 
custom  of  merchants,  and,  being  no  specialty,  no  action  can  be 
grounded  on  it.  Then  it  was  answered,  that  being  void,  no 
damages  could  be  intended  to  be  given  for  it.  Sed  non  allocatur; 
for  it  is  not  a  matter  insensible,  but  insufficient  in  law.  And 
judgment  was  arrested.^     Vide  infra. 

Note  to  same  case  on  p.  364. 

Et  nota  the  diversity  there  taken,  that  after  verdict  it  may  be 
intended  that  no  damages  were  given  for  matter  insensible ;  but 
it  cannot  be  so  intended  for  matter  sensible,  but  insufficient  in 
law. 


cial  verdicts  and  answers  to  specific 
questions.  Logis  and  neatness  of 
legal  theory  have  always  called 
loud,  at  least  in  recent  centuries,  for 
special  verdicts,  so  that  the  true 
significance  of  ascertained  facts 
might  be  ascertained  and  declared 
by  the  one  tribunal  fitted  to  do  this 
finally  and  with  authority.  But  con- 
siderations of  policy  have  called 
louder  for  leaving  to  the  jury  a 
freer  hand." 

1  LoKD  Mansfield,  in  Grant  v. 
Astle,  2  Douglas,  722  (1781):  "I 
have  exceedingly  lamented  that  ever 
so  inconvenient  and  ill-founded  a 
rule  should  have  been  established  as 
that,  where  there  are  several  counts, 
entire  damages,  and  one  count  is 
bad,  and  the  others  not,  this  shall 
be  fatal ;   upon  the  fictitious  reason- 


ing that  the  jury  has  assessed  dam- 
ages on  all,  although  they  in  truth 
never  thought  of  the  different 
counts,  but  the  verdict  was  so  taken, 
from  the  inadvertence  of  counsel 
in  the  hurry  of  Nisi  Prius.  And, 
what  makes  this  rule  appear  more 
absurd,  is  that  it  does  not  hold  in 
the  case  of  criminal  prosecutions; 
for,  when  there  is  a  general  verdict 
of  guilty,  on  an  indictment  consist- 
ing of  several  counts,  if  any  one  of 
them  is  good,  that  is  held  to  be  suffi- 
cient. But  in  civil  cases  the  rule  is 
now  settled,  and  we  have  gone  as 
far  as  we  can,  by  allowing  verdicts 
in  such  cases  to  be  amended  by  the 
judge's  notes.  That  might  have 
been  done,  in  this  instance,  in  an 
earlier  stage  of  the  proceeding,  but 
cannot  now  after  judgment." 


i 


Sec.  8.]  lloyd  v.  morris.  -  613 

LLOYD  V.  MORRIS. 

Willes,  443.      [1743.] 

liAYWARD  moved  in  arrest  of  judgment.  It  was  an  action 
for  words;  and  the  jury  found  for  the  plaintiff,  damages  two 
guineas.  There  was  but  one  count ;  and  the  words  were  "you  are 
a  pickpocket  and  a  murderer;  you  stole  a  guinea  from  A;  you 
killed  his  cattle,  and  murdered  his  child."  He  insisted  that 
the  verdict  being  general,  and  some  of  the  words,  viz.,  "killed 
his  cattle,"  not  actionable,  the  judgment  ought  to  be  arrested; 
and  he  compared  it  to  the  case  of  two  counts,  in  one  of  which 
the  words  are  actionable  and  in  the  other  not.  And  he  cited  the 
case  of  How.  v.  Prinn,  2  Salk.  694,  which  is  nothing  to  the 
purpose;  and  the  case  of  Lloyd  v.  Pearse,  Cro.  Jac.  424,  which 
was  thus;  action  for  these  words,  "thou  art  a  bankrupt  rogue 
and  accounted  a  common  knave ;  thou  art  a  thief,  and  hast  stolen 
my  corn;"  to  the  first  words,  "thou  art  a  bankrupt  rogue  and 
accounted  a  common  knave,"  the  defendant  pleaded  not  guilty; 
and  justified  the  other  words.  Verdict  for  the  plaintiff  on  both 
issues,  Is.  damages  for  the  first  words  and  39s.  for  the  second, 
and  costs  for  both ;  and  judgment  was  reversed,  because  the 
first  words  were  not  actionable,  the  plaintiff  beiaig  neither 
merchant  nor  tradesman,  and  the  judgment  being  entire ;  for  in 
the  judgment  the  damages  were  joined  though  they  were  severed 
in  the  verdict.  He  cited  also  the  case  of  Graves  v.  Blanchett, 
6  Mod.  148,  where  there  were  two  counts  in  an  action  for  words, 
and  a  general  verdict  and  entire  damages,  and  judgment  was 
arrested. 

We  had  none  of  us  much  doubt,  because  this  case  it  very 
different  from  the  case  of  two  counts,  where  the  defendant  might 
have  been  found  not  guilty  upon  one  and  guilty  upon  the  other, 
and  the  case  where  the  words  are  severed  by  the  plea,  for  the 
same  reason.  But  in  this  case  it  was  necessary  either  to  find  the 
defendant  guilty  of  the  whole  or  none;  and  if  judgment  must  be 
arrested,  a  man  by  speaking  words  not  actionable  and  words 
actionable  together  will  secure  himself  from  an  action,  because 
he  mus^  be  found  guilty  of  the  whole  or  none. 

My  brother  Abney  indeed  thought  that  if  the  whole  words 
which  are  laid  in  a  count  are  not  proved,  yet  if  those  which  are 
actionable  be  proved  it  is  sufficient. 


614 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


But  I  and  my  brother  Burnett  thought  otherwise;  and  in 
this  case  we  were  all  of  opinion  that  the  verdict  could  not  be 
found  otherwise;  and  we  would  take  it  that  the  jury  only  gave 
damages  for  such  part  of  the  words  as  were  actionable,  and  that 
the  judge  directed  them  so  to  do.^  However,  we  made  a  rule 
nisi  in  order  to  look  into  the  cases,  but  declared  that  our  present 
opinion  was  that  the  plaintiff  was  entitled  to  his  judgment.  And 
afterwards  he  moved,  and  had  leave  to  enter  up  his  judgment. 


EDDOWES  V.  HOPKINS. 

1  Douglas,  376.     [1780.] 

\  Assumpsit,  tried  before  Lord  Mansfield,  at  Guildhall,  at  the 
sittings  after  last  Michaelmas  term.  The  declaration  contained 
several  counts ;  some  upon  promises  made  by  the  testator,  others 
on  other  promises  by  the  defendants  themselves.  To  the  first 
set  of  counts  plene  administravit  was  pleaded,  and  the  general 
issue  to  the  others ;  and,  the  jury  having  found  for  the  plaintiffs 
with  £147  damage,  a  general  verdict  was  entered  by  the  officer. 

At  the  trial  the  only  question  was  whether  the  plaintiffs  were 
entitled  to  interest  on  the  value  of  goods  sold  by  them  to  the 
testator.  They  were  wholesale  linen  drapers,  and  the  testator 
an  American  merchant,  and  it  appeared  to  have  been  the  usage 
of  the  American  trade  for  merchants  here  to  allow  to  their 
American  correspondents  twelve  months  credit,  and  then  to 
charge  them  five  per  cent  for  interest,  and  for  the  tradesmen  here 
to  allow  the  merchant  fourteen  months  credit,  and  then  to  charge 
five  per  cent.  This  was  hardly  disputed  by  the  defendants,  and 
his  lordship  held  that  though  by  the  common  law  book  debts  do 
not  of  course  carry  interest,  it  may  be  payable  in  consequence 
of  the  usage  of  particular  branches  of  trade;  or  of  a  special 
agreement;  or,  in  cases  of  long  delay  under  vexatious  and  op- 
pressive circumstances,  if  a  jury  in  their  discretion  shall  think 
fit  to  allow  it.  But  none  of  the  articles  for  which  the  testator 
was  indebted  to  the  plaintiffs  had  been  delivered  fourteen  mouths 

1  In  such  a  ease  a  new  trial  may      submitted  to  the  jury,     Christal  v. 
be   necessary   where  the   non-action-       Craig,  80  Mo.  367. 
able    words    have    been    improperly 


Sec.  8.]  eddowes  v.  hopkins.  615 

before  his  death,  so  that  no  interest  was  owning  when  he  died, 
and  the  defendants  contended  that  the  usage  did  not  bind  the 
executors.  Lord  Mansfield,  however,  and  the  jury  thought 
otherwise. 

In  the  last  term  the  solicitor-general  obtained  a  rule  to  show 
cause  why  the  judgment  should  not  be  arrested,  on  the  ground 
that  the  verdict  was  general,  and  the  counts  inconsistent,  and 
such  as  require  different  judgments  to  be  entered,  viz.,  judgment 
de  bonis  testatoris  on  those  where  the  promises  were  laid  to  be 
by  the  testator,  and  de  bonis  propriis  on  the  others.  Some  time 
afterwards,  Baldwin,  for  the  plaintiffs,  obtained  a  cross  rule 
for  the  defendants  to  show  cause  why  the  postea  should  not  be 
amended  by  the  judge's  minutes,  and  a  verdict  entered  for  the 
plaintiffs  only  on  the  counts  to  which  the  evidence  given  at  the 
trial  applied,  and  for  the  defendants  on  the  others.  Both  these 
rules  came  on  to  be  argued  this  day. 

The  solicitor-general,  for  the  defendants,  insisted  that  if  the 
court  were  to  alter  the  postea  they  would,  in  fact,  do  what  was 
properly  and  exclusively  the  province  of  the  jury,  for  that  the 
verdict  would  then  be  the  act  of  the  court. 

Lee,  for  the  plaintiffs,  contended  that  this  was  not  a  new  sort 
of  application,  and  cited  a  case  of  Newcombe  v.  Green,  in  Strange 
(2  Strange,  1197),  where  it  appeared  by  the  judge's  minutes 
that  the  jury  had  found  for  the  plaintiff  with  £274  lis.  damages, 
but  the  officer  only  entered  a  verdict  with  Is.  damages,  and  the 
court  directed  an  amendment  to  be  made  according  to  the  judge's 
minutes. 

Lord  Mansfield  said  it  was  impossible  to  believe  there  was 
such  an  absurdity  in  the  law,  as  that  a  mere  mistake  of  the 
officer  should  be  without  a  remedy,  and  that  neither  the  judge 
nor  jury  could  possibly  have  proceeded  on  what  there  was  no 
evidence  of  before  them ;  and  he  mentioned  a  case  of  one  Gibson 
who  had  been  tried  for  robbing  Mr.  Francis,  and  convicted,  and 
a  mistake  being  discovered  in  the  verdict,  upon  consultation  with 
all  the  judges  at  his  chambers,  it  was  corrected  from  minutes 
signed  by  the  jury,  and  the  prisoner  executed. 

BuLLER,  Justice,  said  there  was  this  distinction,  that,  if  there 
was  only  evidence  at  the  trial  upon  such  of  the  counts  as  were 
good  and  consistent,  a  general  verdict  might  be  altered  from 
the  notes  of  the  judge,  and  entered  only  on  those  counts;  but 
that,  if  there  was  any  evidence  which  applied  to  the  other  bad 


616  CONDUCT    OF   THE    TRIAL.  [ChAP.    IV. 

or  inconsistent  counts  (as,  for  instance,  in  an  action  for  words, 
where  some  actionable  words  are  laid,  and  some  not  actionable, 
and  evidence  given  of  both  sets  of  words,  and  a  general  verdict), 
there  the  postea  could  not  be  amended,  because  it  would  be 
impossible  for  the  judge  to  say  on  which  of  the  counts  the  jury 
had  found  the  damages,  or  how  they  had  apportioned  them. 
That,  in  such  a  case,  the  only  remedy  is  by  awarding  a  venire 
de  novo.  He  mentioned  an  instance  where  Sir  Fletcher  Norton 
had  moved  for  and  obtained  a  venire  de  novo  in  a  case  of  that 
sort. 

The  rule  to  arrest  the  judgment  was  discharged,  and  the  other 
rule  made  absolute ;  but,  on  the  payment  of  costs,  including  those 
of  the  motion  in  arrest  of  judgment. 


McKEE  V.  CALVERT. 

80  Missouri,  348.     [1883.] 

Philips,  C.  This  is  an  action  for  damages  for  an  assault  and 
battery.  Verdict  and  judgment  for  plaintitf  for  the  sum  of 
$250.  Defendant  has  brought  the  case  here  on  appeal.  Neither 
the  motion  for  new  trial  nor  in  arrest  are  preserved  in  the  bill 
of  exceptions,  and  therefore  no  alleged  errors  committed  in  the 
progress  of  the  trial  can  be  considered  or  reviewed  by  this  court. 
Collins  V.  Barding,  65  ]\Io.  496 ;  Jefferson  City  v.  Opel,  67  Mo. 
394 ;  Robinson  v.  Hood,  67  Mo.  660 ;  State  ex  rel.  Estes  v.  Gaither, 
77  Mo.  304.  On  this  record  no  errors  are  reviewable  save  such 
as  are  apparent  in  what  is  known  as  the  record  proper. 

It  is  objected  to  the  petition  that  it  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  It  charges  that  on  the 
13th  day  of  February,  1880,  at  the  County  of  Clark,  State  of 
Missouri,  with  force  and  arms,  the  defendant  assaulted,  beat 
and  bruised,  cut  and  wounded  the  plaintiff,  by  reason  of  which 
he  sustained  damage  in  the  sum  of  $1,000,  for  which  he  prayed 
judgment.  For  further  cause  of  action  it  is  alleged  that  on 
the  day  and  place  aforesaid  the  defendants  did  unlawfully,  with 
their  fists,  sticks,  knives  and  other  sharp  instruments,  assault, 
beat  and  bruise  and  wound  plaintiff,  and  other  wrongs  and 
injuries  to  plaintiff  then  and  there  did,  by  reason  of  which  he 


Sec.  8.]  empson  v.  griffin.  617 

had  sustained  damages  in  the  sum  of  $1,000,  for  which  judgment 
is  prayed. 

The  only  tangible  objection  to  the  petition  occurring  to  us  is, 
that  it  is  not  affirmatively  averred  in  the  first  count  that  the 
assault  was  wrongful,  but  it  is  alleged  that  it  was  "with  force 
and  arms,"  and  this  we  think  would  be  good  after  verdict.  The 
second  count  was  unquestionably  sufficient.  And  while  the  peti- 
tion apparently  counts  as  if  for  two  separate  causes  of  action, 
they  are  manifestly  for  one  and  the  same  assault  and  battery. 
In  such  case  the  good  count  will  support  a  general  verdict  for 
the  plaintiff.^     Brownell  v.  Pacific  Railroad,  47  Mo.  240. 

We  perceive  no  reversible  error  in  the  record,  and  the  judg- 
ment of  the  Circuit  Court  is  therefore  affirmed.     All  concur. 


EMPSON  V.  GRIFFIN. 

11  Adolplms  &  Ellis,  186.     [1839.] 

Case  for  slander.  The  first  count  stated,  in  the  introductory 
part,  that  the  plaintiff  was  an  attorney,  and  a  colloquium  of  and 
concerning  the  plaintiff  in  his  said  profession;  and  then  set  out 
certain  defamatory  words  reflecting  upon  plaintiff  in  his  char- 
acter of  attorney.  There  were  six  other  counts,  one  of  which,  the 
fifth,  contained  no  averment  or  colloquium  concerning  the  plain- 
tiff's profession,  nor  any  reference  to  the  introductory  statement 
in  the  first  count,  but  only  set  out  defamatory  words  imputing 
dishonesty  to  the  plaintiff.     Plea,  not  guilty. 

On  the  trial  before  Park,  J.,  at  the  spring  assizes,  1838,  at 
Warwick,  the  jury  found  a  general  verdict  for  the  plaintiff, 
damages  £15.  Some  of  the  words  attributed  to  the  defendant  in 
the  fifth  count  were  proved  at  the  trial.  In  the  following  Easter 
term  Balguy  obtained  a  rule  nisi  to  arrest  judgment,  because 
the  words  in  the  fifth  count  were  not  actionable  without  refer- 
ence to  the  profession  of  the  plaintiff.  A  few  days  afterwards 
an  order  was  obtained  from  Park,  J.,  to  enter  a  verdict  for  the 
plaintiff  on  the  first  count,  and   for  the  defendant  on  all  the 

1  See  West  v.  Piatt,  127  Mass.  367       applied  in  Bond  v.  Dustin,  112  U.  S. 
(under    rule    of    court).      See    also       604. 
par.   78,  chap.   110,  111.  E.  S.   1913, 


618  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

others.  In  the  same  Easter  term,  May  1st,  Mellor  obtained  a 
rule  nisi  to  set  aside  the  above  order,  on  the  ground  that  some 
of  the  words  complained  of  in  the  fifth  count  were  actually 
proved,  and  the  jury  might  have  been  influenced  by  them  in 
assessing  the  amount  of  damage.  Both  rules  came  on  for  argu- 
ment at  the  sittings  in  banc  after  Trinity  term  last. 

Lord  Denman,  C.  J.,  in  this  vacation  (November  27th)  de- 
livered the  judgment  of  the  court. 

In  this  case  we  are  of  opinion  that  the  order  for  confining  the 
verdict  to  the  first  count  was  wrong,  inasmuch  as  evidence  was 
given  at  the  trial  applicable  to  the  fifth  count,  as  well  as  to  the 
first;  and  the  damages  being  general,  it  cannot  be  known  what 
amount  of  them  the  jury  meant  to  ascribe  to  each.  That  order 
must,  therefore,  be  set  aside. 

The  fifth  count  is  clearly  bad,  and,  according  to  the  older 
decisions,  judgment  ought  to  be  arrested;  but  in  the  late  case 
of  Leach  v.  Thomas  (2  M.  &  W.  427)  the  Court  of  Exchequer, 
following  the  rule  adopted  by  courts  of  error  in  Angle  v.  Alex- 
ander (7  Bing.  119)  and  Day  v.  Robinson  (1  A.  &  E.  554),  held 
that,  under  such  circumstances,  a  venire  de  novo  ought  to  be 
awarded.     Such  must  be  the  rule  in  the  present  instance. 

Rule  absolute  to  set  aside  the  judge's  order.  Venire  de  novo 
awarded. 


HOPKINS  V.  ORR. 

124  U.  8.  510.     [1888.] 

This  was  an  action  of  assumpsit,  brought  April  3,  1882,  by 
Orr  and  Lindsley  against  Hopkins  in  a  District  Court  of  the 
Territory  of  New  Mexico.  The  declaration  contained  a  special 
count  on  a  promissory  note  for  $1,314.65,  made  by  the  defendant 
on  October  1,  1881 ;  and  the  common  counts  for  the  like  sum  due 
on  that  day  for  goods  sold,  for  money  lent,  for  money  paid,  and 
for  mone}'  had  and  received.  The  plaintiffs  filed  with  their 
declaration  the  following  note.     *     *     * 

The  description  of  the  note  in  the  special  count  corresponded 
with  the  note  filed,  except  that  it  did  not  state  that  the  note  was 
payable  with  exchange  and  at  a  particular  place.  The  defendant 
pleaded  non  assumpsit  and  payment.     *     *     * 


Sec.  8.]  hopkins  v.  orr.  619 

The  jury  returned  a  verdict  saying  that  "they  find  for  the 
plaintiff  in  sum  of  thirteen  hundred  and  ninety-nine  and  48/100. ' ' 
The  court  overruled  motions  for  a  new  trial  and  in  arrest  of 
judgment,  and  gave  judgment  "that  the  said  plaintiffs  do  have 
and  recover  from  the  said  defendant,  Lambert  N.  Hopkins,  the 
said  sum  of  thirteen  hundred  and  ninety-nine  and  48/100 
($1,399.48),  and  also  the  costs  in  their  behalf  laid  out  and  ex- 
pended, to  be  taxed,  but  that  execution  shall  not  issue  therefor 
until  further  order  of  the  court."     *     *     * 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

It  was  not  contended  in  either  of  the  courts  of  the  territory 
that  any  question  of  fact  should  have  been  submitted  to  the 
jury;  but  the  contest  was  upon  the  sufficiency  of  the  evidence 
and  the  verdict,  in  matter  of  law,  to  support  a  judgment  for  the 
plaintiffs. 

Upon  the  testimony  that  the  defendant  admitted  his  indebted- 
ness on  the  note  given  in  evidence,  that  note,  though  varying  from 
the  description  in  the  special  count,  was  admissible  under  the 
common  counts  as  evidence  of  money  had  and  received  by  the 
defendant  to  the  plaintiffs'  use.  Grant  v.  Vaughan,  3  Burrow, 
1516 ;  Page  v.  Bank  of  Alexandria,  7  Wheat.  35 ;  Goodwin  v. 
Morse,  9  Met.  278.  And  by  the  statutes  of  the  territory  the  sum 
so  admitted  to  be  due  bore  interest  at  the  rate  of  six  per  cent. 
Prince's  Laws,  Chap.  79,  §  4;  Comp.  Stat.,  §  1734. 

The  omission  of  the  word  "dollars"  in  the  verdict  was  not  such 
a  defect  as  to  prevent  the  rendering  of  judgment  according  to 
the  manifest  intent  of  the  jury,  although  it  might  have  been  more 
regular  to  amend  the  verdict  before  judgment.  Parks  v.  Turner, 
12  How.  39 ;  Beall  v.  Territory,  1  New  Mexico,  507,  519. 

It  was  argued  for  the  defendant  that  under  the  rule  recognized 
in  ]\raryland  v.  Baldwin,  112  U.  S.  490,^  the  verdict  being  general 
on  all  the  counts,  and  the  evidence  not  supporting  the  special 
count,  no  judgment  could  be  rendered  on  the  verdict  without  first 
amending  it  so  as  to  limit  it  to  the  common  counts.     But  the 

1  Field,  J.,  in  IMarylancl  v.  Bald-  entered,  the  ease  was  brought  here 

win,  112  U.  S.  490:      "Upon  these  on  writ  of  error, 
pleas   issues   were   joined   and   tried  "On    the    trial    evidence    was    in- 

by    the    court    with    a    jury,    which  troduced    bearing    upon    all    the    is- 

found  a  general  verdict  for  the  de-  sues,   and    if   any   one   of   the   pleas 

fendants.      Judgment    having    been  was,  in  the  opinion  of  the  jury,  sus- 


620  CONDUCT    OP   THE   TRIAL.  [ChAP.    IV. 

technical  rule  of  the  common  law  in  this  matter  has  been  changed 
by  statute  in  many  parts  of  the  United  States.  Bond  v.  Dustin, 
112  U.  S.  604.  In  New  Mexico  that  rule  has  been  abrogated  by 
the  statute  of  the  territory,  by  which  "the  Supreme  Court,  in 
appeals  or  writs  of  error,  shall  examine  the  record,  and  on  the 
facts  therein  contained  alone  shall  award  a  new  trial,  reverse  or 
affirm  the  judgment  of  the  District  Court,  or  give  such  other 
judgment  as  to  them  shall  seem  agreeable  to  law."  Prince's 
Laws,  Chap.  16,  §  7 ;  Comp.  Stat.,  §  2190.  The  manifest  object 
of  the  statute  is,  not  merely  to  restrain  the  Appellate  Court  from 
going  outside  of  the  record,  but  to  enable  it  to  render  such  a 
judgment  as  upon  a  consideration  of  the  whole  record  justice 
may  appear  to  require. 

The  Supreme  Court  of  the  territory  was  therefore  authorized 
to  affirm  the  judgment  rendered  by  the  District  Court  upon  the 
general  verdict  for  the  plaintiffs,  if  the  facts  contained  in  the 
record  supported  any  count  in  the  declaration,  as  we  have  seen 
that  they  did.  And  there  can  be  no  doubt  of  its  authority  to 
make  its  affirmance  of  the  judgment  conditional  upon  the  plain- 
tiffs' remitting  part  of  the  interest  awarded  below.  Bank  of 
Kentucky  v.  Ashley,  2  Pet.  327.     *     *     * 


BENNETT  v.  BUTTERWORTH. 
11  Howard  (U.  S.),  669.     [1850.] 

This  case  was  brought  up  by  writ  of  error,  from  the  District 
Court  of  the  United  States  for  the  District  of  Texas. 

In  1848  Butterworth  tiled  the  following  petition  against  Ben- 
nett :     *     *     * 

"The  petition  of  Samuel  F.  Butterworth,  who  is  a  citizen  of 
the  State  of  New  York,  against  John  H.  Bennett,  who  is  a  citizen 
of  the  State  of  Texas,  would  respectfully  represent  unto  your 

tained,    their   verdict   was    properly  or  in  the  charge  of  the  court,  the 

rendered,  but  its  generality  prevents  verdict  cannot  be  upheld,  for  it  may 

us  from  perceiving  upon  which  plea  be   that  by   that  evidence  the  jury 

they  found.     If,  therefore,  upon  any  were    controlled    under    the   instruc- 

one     issue     error     was     committed,  tions  given. ' ' 
either  in  the  admission  of  evidence 


J 


Sec.  8.]  bennett  v.  butterworth.  621 

honor  that  heretofore,  viz.,  on  the  day  of  March,  1846,  at 

,  to-wit,  in  the  district  aforesaid,  he,  your  petitioner, 

was  lawfully  seized  and  possessed  of  four  negroes,  slaves  for  life, 
whose  names  and  descriptions  are  as  follows :  viz. :  Billy,  a 
negro  man,  of  a  dark  complexion,  aged  about  twelve  years,  of 
the  value  of  five  hundred  dollars;  Lindsey,  a  negro  man,  of  a 
dark  complexion,  aged  twenty-two  years,  and  of  the  value  of 
one  thousand  dollars;  Betsy,  a  mulatto  woman,  of  a  light  com- 
plexion, aged  about  thirty  years,  and  of  the  value  of  eight 
hundred  dollars;  and  Alexander,  a  boy  of  a  very  light  complex- 
ion, aged  about  four  years,  and  of  four  hundred  dollars  value,  of 
his  own  property.  And  being  so  possessed,  your  petitioner, 
afterwards,  to-wit,  on  the  day  and  year  aforesaid,  in  the  district 
aforesaid,  casually  lost  the  same  out  of  his  possession,  and  the 
same,  afterwards,  to-wit,  on  the  day  and  year  aforesaid,  in  the 
district  aforesaid,  came  to  the  possession  of  the  defendant  by 
finding.  And  your  petitioner  charges,  that  the  said  defendant, 
well  knowing  the  said  negro  slaves  to  be  the  property  of  your 
petitioner,  and  of  right  to  belong  and  appertain  to  him,  hath  not 
as  yet  delivered  the  above  described  negroes,  or  any  or  either  of 
them,  although  often  requested  so  to  do,  to  your  petitioner ;  but 
hath  hitherto  wholly  refused  so  to  do,  and  hath  detained,  and 
still  doth  detain,  the  same  from  your  petitioner,  who  says  he  has 
received  damages,  by  reason  of  the  detention  of  the  slaves  afore- 
said, of  five  thousand  dollars.     *     *     * 

The  plea  of  the  defendant  set  up  a  title  to  the  slaves  in  him- 
self; averring  that  a  dispute  had  existed  between  Butterworth 
and  one  John  D.  Amis  and  one  Junius  Amis,  which  had  been 
left  to  arbitration ;  that  the  referees  had  decided,  amongst  other 
things,  that  Butterworth  should  transfer  certain  negroes  to  Amis ; 
that  Butterworth  delivered  the  negroes,  which  were  those  in 
question;  that  Amis  sold  the  negroes  to  him,  Bennett;  and  the 
plea  concluded  in  this  way  : 

"Wherefore  the  said  John  H.  Bennett  says  the  said  four 
negroes  are  his  property,  and  not  the  property  of  the  said 
Butterworth,  and  of  this  he  puts  himself  upon  the  country. ' ' 

To  this  plea  Butterworth  replied,  that  all  the  parties  to  the 
submission  and  decision  in  the  plea  set  out  did  not  assent  and 
agree  to  the  same,  and  that  Butterworth  did  not  sell,  convey  and 
deliver  the  negroes  in  the  petition  mentioned  in  compliance  with 
the  terms,  or  any  of  the  terms,  of  the  said  decision. 


622 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


Upon  these  allegations  a  jury  was  sworn,  who  found  the  fol- 
lowing verdict: 

''We,  the  jury,  find  for  the  plaintiff  twelve  hundred  dollars, 
the  value  of  the  four  negro  slaves  in  suit,  with  six  and  a  quarter 
cent  damages. 

"  C.  C.  Herbert,  Foreman. ' ' 

And  thereupon  the  plaintiff,  by  his  attorney,  in  open  court, 
released  the  said  judgment  for  twelve  hundred  dollars  as  afore- 
said. It  is  therefore  considered  by  the  court  that  the  plaintiff 
recover  of  the  defendant  the  negro  man  Lindsey,  the  negro 
woman  Betsy  and  her  child,  and  the  negro  boy  Billy,  the  negro 
slaves  in  the  petition  of  plaintiff  mentioned,  and  also  six  and  a 
fourth  cents,  the  damages  by  the  jurors  aforesaid  assessed,  and 
also  his  costs  about  his  suit  in  this  behalf  expended.     *     *     * 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 


There  is  nothing  in  these  proceedings  which  resembles  a  bill 
or  answer  in  equity  according  to  the  rules  prescribed  by  this 
court,  nor  any  evidence  stated  upon  which  a  decree  in  equity 
could  be  revised  in  an  Appellate  Court.  Nor  was  any  equitable 
title  set  up  by  Butterworth,  the  plaintiff,  in  the  court  below. 
He  claimed  in  his  petition  a  legal  title  to  the  negroes,  which 
the  defendant  denied,  insisting  that  he  himself  was  the  legal 
owner.     It  was  a  suit  at  law  to  try  a  legal  title. 

The  defendant  (Bennett)  in  his  plea  or  answer  claimed  under 
an  award  to  which  Butterworth  and  a  certain  Junius  Amis  and 
a  certain  John  D.  Amis  were  parties;  and  averred  that,  in 
execution  of  this  award,  the  said  negroes  had  been  delivered  by 
Butterworth  to  John  D.  Amis  as  his  property,  and  by  him  after- 
wards transferred  to  Bennett  for  a  valuable  consideration.  To 
this  plea  Butterworth  replied,  that  all  the  parties  to  the  sub- 
mission and  decision  in  the  plea  set  out  did  not  assent  and 
agree  to  the  same,  and  that  ButterM^orth  did  not  sell,  convey 
and  deliver  the  negroes  in  the  petition  mentioned,  in  compliance 
with  the  terms,  or  any  of  the  terms,  of  the  said  decision.  And 
upon  these  allegations  a  jury  was  sworn,  who  found  for  Butter- 
worth (the  plaintiff  in  the  court  below)  in  the  following  words: 
"We,  the  jury,  find  for  the  plaintiff  twelve  hundred  dollars, 
the  value  of  the  four  negro  slaves  in  suit,  with  six  and  a  quarter 
cents  damages." 

And  the  record  proceeds  to  state,  that  thereupon  the  plaintiff 


Sec.  8.]  bennett  v.  butterworth.  623 

(Butterworth),  by  his  attorney,  in  open  court,  released  the  said 
judgment  for  $1,200;  and  thereupon  the  court  adjudged  that  he 
recover  of  the  defendant  the  four  negroes  mentioned  in  his  peti- 
tion, and  the  six  and  a  quarter  cents  assessed  by  the  jury,  and 
his  costs. 

It  does  not  appear  whether  any  direction  to  the  jury,  as  to 
the  law  of  the  case,  was  asked  for  by  either  of  the  parties,  or 
given  by  the  court ;  we  have  nothing  but  the  pleadings,  confused 
and  loose  as  they  are,  and  the  verdict  and  the  judgment. 

Now  if  anything  is  settled  in  proceedings  at  law  where  a  jury 
is  impaneled  to  try  the  facts,  it  is  that  the  verdict  must  find  the 
matter  in  issue  between  the  parties,  and  the  judgment  of  the 
court  must  conform  to  and  follow  the  verdict. 

But  here  the  matter  in  issue  was  the  property  in  these  negroes, 
and  the  verdict  does  not  find  that  they  are  the  property  of  the 
plaintiff  or  the  defendant,  but  finds  for  the  plaintiff  their  value, 
which  was  not  an  issue.  It  ought,  therefore,  to  have  been  set 
aside  upon  the  motion  of  either  party,  as  no  judgment  could 
lawfully  be  entered  upon  it.  It  was  a  verdict  for  a  matter 
different  from  that  which  they  were  impaneled  to  try. 

In  the  next  place,  if  any  judgment  could  have  been  rendered 
on  the  verdict,  it  ought  to  have  been  a  judgment  for  the  money 
found  by  the  jury.  For  the  trial  of  facts  by  a  jury  would  be 
of  very  little  value,  if,  upon  a  verdict  for  money  to  a  certain 
amount,  the  court  could  infer  that  the  jury  intended  to  find 
something  else,  and  give  a  judgment  for  property  instead  of 
money.  And  lastly,  when  the  plaintiff,  in  the  District  Court, 
released  the  $1,200  found  by  the  jury,  there  was  nothing  of  the 
verdict  remaining,  upon  which  the  court  could  act  or  give  judg- 
ment for  either  party,  but  the  six  and  a  quarter  cents  damages 
which  the  jury  found  in  addition  to  the  value. 

The  judgment  is  evidently  erroneous,  and  must  be  reversed. 
And  as  these  errors  are  patent  upon  the  record,  they  are  open 
to  revision  here,  without  any  motion  in  arrest  of  judgment,  or 
exception  taken  in  the  District  Court. 


624 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


TAYLOR  V.  WILLES. 

Crolic,  Carolus,  219.     [1630.] 

Error  upon  a  judgment  in  Exeter,  in  an  action  on  the  case 
upon  an  assumpsit,  that  in  consideration  the  plaintiff  Willes 
would  deliver  two  hundred  and  a  quarter  of  woad,  the  defendant 
Taylor  assumed  to  pay  as  much  as  it  should  be  reasonably  worth, 
and  upon  another  consideration  assumed  to  do  another  act. 
Taylor  pleaded  non  assumpsit.  The  jury  find  quod  assumpsit, 
and  assess  for  damages  thirty-three  pounds  six  shillings  eight 
pence,  to  be  paid  in  dyeing,  if  by  law  it  may  be,  and  assess  for 
costs  six  shillings  eight  pence.  The  judgment  given  was,  that 
he  should  recover  the  thirty-three  pounds  six  shillings  eight  pence 
for  damages  assessed  by  the  jury,  and  the  costs;  upon  which  a 
writ  of  error  was  brought. 

Germyn,  for  the  plaintiff  in  the  writ  of  error,  assigned  for 
error :  First,  that  the  verdict  is  ill,  because  they  find  generally 
quod  assumpit,  and  do  not  divide  them,  being  several.  Sed  non 
allocatur;  for  if  they  were  upon  several  promises,  yet  "non 
assumpsit"  generally  is  good;  and  the  verdict  so  general  is 
good.i 

Secondly,  because  it  was  found  that  the  damages  of  thirty- 
three  pounds  six  shilling  eight  pence  are  to  be  paid  in  dyeing, 
if  by  law  it  may  be.  Sed  non  allocatur;  for  the  finding  the 
assumpsit  is  good  enough,  and  so  was  the  assessing  damages  to 
thirty-three  pounds  six  shillings  eight  pence ;  but  that  which  is 
found  after  is  void ;  and  the  judgment  omitting  that  which  was 
void  is  good  enough.     The  judgment  was  therefore  affirmed. 


1  At  an  early  period  great  strict- 
ness in  form  was  required.  Hobbs 
V.  Blanchard,  Style,  167   (1649). 

"Blanchard  brouglit  an  action  of 
trespass  in  the  court  at  Norwitch 
against  Hobbs,  and  had  a  verdict 
and  a  judgment.  The  defendant 
brought  a  writ  of  error  to  reverse 
the  judgment.  The  error  assigned 
was  that  the  jury  had  not  found 
the  issue  joined;  for  the  issue 
joined  is  de  injuria  s^ia  propia 
absque  tali  causa,  and  the  jury  have 
found  not  guilty  generally.  Panel 
of    counsel    with    the    dyfendant    in 


the  writ  of  error  said  that  the  jury 
have  found  the  effect  of  the  issue, 
though  they  have  not  foimd  the  very 
words,  and  therefore  it  is  good 
enough,  and  he  cited  Fabian  & 
Kingstone's  case,  32  Eliz.,  and  Win- 
grave  &  Homes  his  case,  3  Car., 
entered  2  Car.  rot.  632.  KOLL,  chief 
justice,  answered,  that  the  verdict 
found  the  issue  argumentatively 
only,  and  not  directly;  and  there- 
fore it  is  not  good.  Jerman,  justice, 
was  of  the  same  opinion;  and  the 
judgment  was  reversed,  except  bet- 
ter cause  shown. ' ' 


Sec.  8.]  fenwick  v.  logan.  625 

FENWICK  V.  LOGAN. 

1  Missouri,  401.     [1823.] 

M'GiRK,  C.  J.  This  was  an  action  of  trespass  for  assault  and 
battery.  Two  pleas  were  pleaded:  First,  the  general  issue; 
and  second,  a  justification  of  son  assault  demesne.  A  jury  was 
impaneled  to  try  the  issues,  and  they  returned  a  verdict  of 
guilty,  generally,  without  saying  anything  about  the  justification. 
A  motion  was  made  to  arrest  the  judgment,  and  set  aside  the 
verdict,  on  the  ground  that  there  was  no  finding  on  the  special 
plea ;  and  this  motion  was  overruled,  and  judgment  for  the 
plaintiff.  The  cause  is  brought  here  by  writ  of  error,  and  the 
want  of  a  finding  on  the  special  plea  assigned  for  error.  The 
law  is,  that  the  verdict  must  find  all  in  issue,  otherwise  it  is 
bad.  The  general  issue,  only,  puts  in  question  the  fact  of  the 
assault  and  battery;  and  the  special  plea  puts  in  issue  the 
excuse  allowed  by  law  for  doing  the  act ;  and  if  the  justification 
is  found  for  the  defendant,  he,  though  he  did  the  act,  is  to  be 
discharged.  Here,  only  the  fact  of  doing  the  act  was  inquired 
into ;  and  his  discharge,  or  justification  therefor,  is  not  inquired 
into. 

The  judgment  is,  therefore,  erroneous,  and  is  reversed.  The 
cause  is  remanded  to  the  Circuit  Court,  to  try  both  issues.  The 
costs  of  this  writ  of  error  are  to  be  paid  by  defendant  in  error.^ 


WILDERMAN  v.  SANDUSKY. 

15  Illinois,  59.      [1853.] 

Treat,  C.  J.  Sandusky  brought  an  action  of  trespass  against 
four  persons  of  the  name  of  Wilderman.  The  cause  was  sub- 
mitted to  a  jury  as  to  all  of  the  defendants.  The  verdict  was  as 
follows:  "We,  the  jury,  find  the  three  defendants,  Nancy 
Wilderman,  Simon  Wilderman  and  Garrison  Wilderman,  guilty, 
and  assess  the  plaintiff's  damages  at  $35."    The  court  overruled 

1  As  to  conforming  to  the  plead- 
ings, see  Pepy's  case,  3  Leonard, 
SO,  ante,  p.  513. 

H.  T.  P.— 40 


626 


CONDUCT    OF   THE   TRIAL. 


[Chap.  IV. 


a  motion  for  a  new  trial,  and  rendered  judgment  against  the 
three  defendants.     They  prosecuted  an  appeal. 

Upon  a  full  examination  of  the  evidence,  we  are  satisfied  that 
the  court  committed  no  error  in  refusing  to  grant  a  new  trial. 

It  is  insisted  that  the  verdict  was  defective  and  that  the  court 
erred  in  rendering  any  judgment  upon  it.  In  our  opinion,  the 
verdict  was  substantially  good.  It  may  properly  be  regarded 
as  a  finding  on  all  of  the  issues ;  and  the  judgment  may  be  con- 
sidered as  a  final  disposition  of  the  whole  case.  The  case,  as  to 
all  of  the  defendants,  was  submitted  to  the  jury ;  and  they  found 
affirmatively  that  three  of  them  were  guilty.  In  legal  contem- 
plation this  amounted  to  a  negative  finding  of  not  guilty  as  to 
the  other  defendant.  The  case  of  Stoltz  v.  The  People,  4  Scam. 
168,  is  in  principle  directly  in  point.  In  that  case  the  indict- 
ment contained  two  counts,  each  charging  a  different  offense. 
The  verdict  was  simply  guilty  as  to  the  first  count.  On  error 
brought  by  the  defendant,  this  court  affirmed  the  judgment 
entered  on  the  verdict,  on  the  ground  that  the  verdict  amounted 
to  a  finding  of  not  guilty  on  the  second  count,  and  that  the 
defendant  could  never  again  be  put  on  his  trial  for  the  offense 
charged  therein.  The  case  of  Swinney  v.  The  State,  8  S.  &  M. 
576,  holds  the  same  doctrine.  This  view  of  the  case  can  not 
operate  to  the  prejudice  of  Jacob  Wilderman.  He  may  rely  on 
the  verdict  and  judgment  as  a  bar  to  any  further  prosecution. 
Nor  have  the  appellants  any  cause  to  complain.  In  actions  of 
this  character,  the  plaintiff  may  sue  any  or  all  of  the  parties 
concerned  in  the  act.  The  jury  may  convict  one  and  acquit 
another.  If  one  is  compelled  to  pay  the  damages  awarded,  he 
can  not  enforce  contribution  from  his  co-defendant. 

Judgment  affirmed.^ 


(c)  Special  Verdicts. 


REX  V.  FRANCIS. 

2  Strange,  1015.     [1735.] 

The  defendants  were  indicted  at  the  assizes  in  Somersetshire, 
for  that  they  feloniously  made  an  assault  on  Samuel  Cox  in  the 

1  But     see     Schweikhardt     v.     St. 
Louis,  2  Mo.  App.  571. 


Sec.  8.]  rex  v,  francis.  627 

King's  highway,  and  put  him  in  fear,  and  £9  in  money  from  the 
person  of  Cox  did  take,  steal  and  carry  away.  Upon  not  guilty 
pleaded  by  all  the  defendants,  the  jury  find  this  special  verdict : 

That  Samuel  Cox,  traveling  on  horseback  on  the  King's  high- 
way to  Somerton  fair,  on  a  place  called  King's  Down  Hill  in  the 
County  of  Somerset,  saw  all  the  prisoners  in  company  together, 
one  of  whom  was  then  lying  on  the  ground ;  that  Cox  passed  by 
them,  and  one  of  them  (but  which  the  jury  do  not  know)  called 
to  Cox  and  desired  him  to  change  half  a  crown,  that  they  might 
give  something  to  a  poor  Scotchman  then  lying  on  the  ground, 
who  was  one  of  the  prisoners.  Cox  came  back,  and  putting  his 
hand  in  his  pocket  to  pull  out  his  money  in  order  to  give  them 
change,  as  they  desired,  he  pulled  out  four  moidores  and  a 
Portugal  piece  value  £3,  12d,  and  having  the  pieces  of  gold  in 
his  hand,  John  Francis,  one  of  the  prisoners,  gently  struck  Cox's 
hand,  in  which  he  held  the  gold,  by  means  whereof  the  gold  fell 
on  the  ground;  that  thereupon  Cox  got  off  from  his  horse  and 
said  to  the  prisoners  that  he  would  not  lose  his  money  so ;  and 
the  said  Cox  then  and  there  offering  to  take  up  the  pieces  of 
gold,  which  were  then  upon  the  ground,  and  in  Cox's  presence; 
the  prisoners  then  and  there  swore,  that  if  he  touched  the  pieces 
of  gold  they  would  knock  his  brains  out ;  whereby  he  was  then 
and  there  put  in  bodily  fear  of  his  life,  and  then  and  there 
desisted  from  taking  up  the  pieces  of  gold.  That  the  prisoners 
then  and  there  immediately  took  up  the  gold,  and  got  on  their 
horses  and  rode  off  with  the  gold ;  that  Cox  immediately  there- 
upon pursued  them,  and  rode  after  them  for  about  half  a  mile ; 
and  then  the  prisoners  struck  him  and  his  horse,  and  swore  that 
if  he  pursued  them  any  farther  they  would  kill  him ;  by  reason 
of  which  menace  he  was  afraid  to  continue  his  pursuit  any 
farther ;  but  whether  upon  the  whole  matter  the  prisoners  are 
guilty  of  the  felony  and  robbery  charged  on  them  the  jury  doubt, 
and  pray  the  advice  of  the  court.     Et  si,  etc. 

This  special  verdict  and  the  prisoners  were  removed  into  the 
King's  Bench,  where  it  was  twice  argued  at  the  bar.  And  upon 
the  first  argument  the  only  question  was,  whether  a  taking  in 
the  presence  be  in  point  of  law  a  taking  from  the  person,  and  it 
was  unanimously  determined  that  it  was. 

But  then  a  doubt  arose  (which  occasioned  the  second  argument) 
whether  it  was  sufficiently  found  to  have  been  taken  in  the 
presence  of  Cox,  it  not  being  said  so  in  express  Avords;  and 


628  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

after  it  had  been  argued  in  B.  R.  upon  the  point,  it  was  ordered 
to  be  argued  again  at  Serjeants'  Inn  Hall  before  all  the  judges 
of  England,  where  I  attended  on  behalf  of  the  prisoners  against 
Mr.  Hussey,  who  argued  for  the  King,  and  insisted  that  here  was 
sufficient  found  to  constitute  the  crime  of  robbery,  it  being 
found  that  Cox  was  put  in  fear,  and  that  the  money  was  in  his 
possession,  till  one  of  the  prisoners  struck  it  out  of  his  hand; 
and  the  finding  that  the  prisoners  immediately  took  it  up,  ex- 
eludes  all  possibility  of  mesne  acts,  such  as  Cox's  going  away 
before  they  took  it  up ;  and  that  to  excuse  them  it  should  have 
been  expressly  found  that  Cox  did  go  away  before  the  money 
was  taken  up. 

Strange,  contra,  I  shall  not  dispute  but  that  a  taking  in  the 
presence  is  a  taking  from  the  person,  and  consequently  a  rob- 
bery, where  it  is  accompanied  with  the  other  necessary  circum- 
stances. But  the  question  here  is,  whether  this  is  found  to  be  a 
taking  in  the  presence  of  Cox.  It  is  unnecessary  to  cite  cases, 
to  prove  that  on  these  verdicts  nothing  is  to  be  intended ;  judges 
have  always  guarded  against  that  with  great  caution.  It  has 
gone  so  far  that  where  it  stands  indifferent  which  way  the  fact 
is  to  be  taken,  the  turn  of  the  scale  is  never  given  against  the 
prisoner.  And  therefore  in  Keat's  case,  5  Mod.  287,  Skin.  666, 
where  on  an  indictment  for  killing  his  gardener  the  jury  found 
that  the  master  struck  the  gardener,  and  the  gardener  struck 
the  master,  and  the  master  gave  him  a  mortal  wound,  the  judges 
would  not  determine  that  the  master  struck  first,  so  as  to  make 
it  murder ;  and  yet  from  the  manner  of  finding  any  one  would 
be  led  to  collect  that  the  first  blow  was  given  by  the  master.  It 
must  be  agreed  that  here  is  no  finding  in  express  words,  that 
the  taking  was  in  his  presence.  But  it  is  contended  that  here 
is  that  which  is  tantamount.  Now  I  insist,  that  how  great  room 
soever  here  is  to  infer  the  presence  of  Cox ;  yet  it  not  being  found 
as  a  fact  that  he  was  present  at  the  taking  up  the  money,  and 
that  being  a  circumstance  material  to  constitute  it  a  robbery,  the 
prisoners  must  be  discharged.     *     *     * 

After  this  argument  the  judges  took  time  to  consider  it.  And 
this  term  the  chief  justice  declared  that  all  the  judges,  except 
Carter,  Comyns  and  Thompson,  who  only  doubted,  were  of 
opinion  that  the  fact  of  Cox 's  presence  at  the  taking  was  not  suf- 
ficiently found,  though  there  seems  to  have  been  evidence  enough 
to  warrant  such  a  finding.     That  the  whole  rested  on  the  word 


Sec.  8.]  marten  v,  jenkin.  629 

immediately,  then  and  there  serving  only  for  a  venue,  and  im- 
mediately was  a  word  too  loose  and  uncertain.  In  Stephen's 
Thesaurus  it  is  rendered  cito  and  celeriter;  in  Cowper,  by  and 
by,  and  in  other  dictionaries,  Sine  dilatione  and  presently.  In 
legal  proceedings  it  does  not  exclude  all  mesne  times  and  mesne 
acts.  In  Oneby's  verdict  it  is  used  five  times  to  different  pur- 
poses. In  Mawgridge  's  twice.  On  the  statute  27  Eliz.,  Chap.  13, 
§  11,  the  notice  for  hue  and  cry  must  be  in  convenient  time ;  and 
yet  on  declaring  you  aver  that  it  was  immediate,  which  is  sup- 
ported by  proof  of  a  convenient  time.  The  cases  cited  show  how 
nice  the  judges  have  always  been ;  and,  therefore,  as  here  wants 
one  necessar}'-  ingredient  to  make  it  a  robbery,  the  prisoners  must 
be  discharged  from  this  indictment.     *     *     * 


MARTEN  V.  JENKIN. 
2  Strange,  1145.      [1741.] 

On  a  mandamus  to  swear  the  plaintiff  into  the  office  of  mayor 
of  Winchelsea,  it  appeared  by  a  special  verdict  that  the  mayor 
must  be  chosen  out  of  the  jurats,  and  that  the  plaintiff,  1  May, 
1739,  was  chosen  a  jurat,  and  sworn  in,  and  continued  so  till 
7  April,  1740,  when  he  was  chosen  mayor;  that  he  had  received 
the  sacrament  within  a  year  before  his  election  to  be  mayor,  but 
not  within  a  year  before  he  was  chosen  a  jurat.  And  the  ques- 
tion was,  whether  the  statute  5  Geo.  1,  Chap.  6,  §  3,  could  operate 
so  as  to  give  him  the  benefit  of  the  non-prosecution  in  six  months 
with  regard  to  the  previous  qualification.  And  the  court  held 
it  did,  else  he  would  be  under  some  degree  of  disability  or 
incapacity,  when  the  act  says  none  shall  be  incurred. 

But  then  a  doubt  was  made,  whether  as  the  verdict  was  silent 
as  to  any  prosecution,  it  was  sufficient  for  the  court  to  give  judg- 
ment upon ;  and  whether  it  should  not  have  been  found  negatively, 
there  was  none.  But  the  court  held  it  well  enough,  for  the 
plaintiff  liad  nothing  more  to  do  than  to  find  his  election ;  what 
is  to  avoid  it,  should  come  from  the  other  side ;  and  that  as  it  is 
not  found,  there  was  a  prosecution,  which  it  lay  upon  the  defend- 
ant to  show;  they  could  not  be  warranted  in  saying  the  plain- 
tiff's election  was  done  away;  and  therefore  they  gave  judgment 
for  the  plaintiff. 


630  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

TANCRED  V.  CHRISTY. 
12  Meeson  &  Welshy,  316.     [1843.] 

The  facts  of  this  special  case  (see  9  M.  &  W.  438)  having  been 
turned  into  a  special  verdict,  a  writ  of  error  was  brought  by  the 
defendants  below.  The  special  verdict  differed  from  the  special 
case  only  by  setting  out  the  argument  (?)  at  full  length.  The  ex- 
ceptions to  the  judgment,  stated  by  the  plaintiffs  in  error,  were 
as  follows: 

' '  On  the  argument  the  plaintiff  in  error  Tancred  will  contend 
that  the  special  verdict  does  not  show  any  liability  on  his  part 
for  the  use  and  occupation  of  the  premises  in  question,  during 
any  of  the  time  for  which  the  judgment  is  given ;  that  his  liability 
arose  on  his  contract  for  the  term  and  ceased  on  the  24th  of 
June,'A.  D.  1839. 

"That  the  holding  over  by  a  co-tenant,  if  such  is  in  fact  shown 
in  the  special  verdict,  does  not  bind  him,  unless  it  expressly 
appears  that  he  assented  to  the  holding  over,  and  in  no  part  of 
the  special  verdict  is  it  found  that  he  so  assented.     *     *     * 

TiNDAL,  C.  J.  This  was  an  action  for  the  use  and  occupation 
of  certain  premises,  subsequent  to  Michaelmas,  1839.  Christy, 
the  defendant  in  error,  had  let  them  to  the  plaintiffs  in  error  and 
others  for  a  year  certain,  by  a  written  agreement,  which  expired 
at  midsummer,  1839.  The  special  verdict  finds  that  the  lessees 
were  the  provisional  directors  of  a  banking  company,  that  one  of 
the  plaintiffs  in  error,  Tancred,  ceased  to  be  a  director  in  Janu- 
ary, 1839,  long  before  the  exj)iration  of  the  year,  and  that  the 
premises  continued  to  be  occupied  by  the  banking  company  after 
the  year,  for  which  occupation,  subsequent  to  one  year,  compen- 
sation was  sought  to  be  recovered  in  the  action.  But  the  special 
verdict  is  entirely  silent  as  to  Tancred 's  assenting  to  such  occu- 
pation, and  as  to  his  being  or  not  being  at  any  time  a  partner  in 
the  company.  We  are  of  opinion  that  it  is  essential  to  the  due 
determination  of  this  case  that  those  facts  should  be  found  one 
way  or  the  other.  If  there  was  no  direct  evidence  in  respect 
of  them,  still  they  are  inferences  of  fact,  which  must  be  drawn 
one  way  or  the  other  from  the  other  facts  stated,  and  those 
inferences  must  be  drawn  by  the  jury  and  cannot  be  drawn  by  a 
court  of  error.  It  appears  that  the  argument  in  the  Court  of* 
Exchequer  was  upon  a  case  reserved,  and  not  on  a  special  verdict, 


Sec.  8.]  wallingford  v.  dunlap.  631 

so  that  the  court  below  was  at  liberty  to  draw,  and  it  appears, 
by  the  judgment  reported,  did  draw,  inferences  of  fact,  the 
propriety  of  which  we  do  not  in  the  least  question.  But  unfor- 
tunately, we  are  not  at  liberty  to  do  the  same  upon  this  special 
verdict,  which  is  so  imperfect  that  we  cannot  give  any  judgment 
upon  it,  and  we,  therefore,  hold  that  there  must  be  a  venire  de 
novo  awarded,  as  was  done  in  the  case  of  R.  v.  Trafford  and  others 
(8  Bing.  204;  1  M.  &  Scott,  401 ;  2  C.  &  J.  265). 

Venire  de  novo. 


WALLINGFORD  v.  DUNLAP. 

U  Pennsylvania  St.  31.     [1850.] 

Error  to  the  District  Court  of  Allegheny. 

This  was  an  action  on  the  case,  brought  by  John  Dunlap  against 
Wallingford  and  others,  for  injuries  alleged  to  have  been  done 
by  defendants  to  two  houses  of  the  plaintiff,  in  Pittsburgh,  by 
undermining  and  otherwise  injuring  the  same.  The  defendants 
in  preparing  a  foundation  for  a  house,  which  they  were  about  to 
erect  on  ground  adjoining,  had  ground  alongside  or  near  plain- 
tiff's house  dug  away,  and  it  was  alleged  that  this  was  done 
without  taking  proper  precautious,  and  that  the  houses  of  plain- 
tiff were  injured. 

After  the  evidence  was  closed,  Lowrie,  J.,  charged  the  jury. 

He  stated  that  the  counsel  have  raised  several  points  of  law, 
which  might  possibly  not  arise  at  all,  if  the  facts  of  the  case 
were  settled.  That  it  was  agreed  that  a  special  verdict  be  found 
on  the  disputed  facts,  and  that  the  court  shall  enter  such  judg- 
ment thereon,  and  on  the  facts  not  disputed,  as  the  law  requires. 
He  stated  to  the  jury  certain  undisputed  facts  and  referred  other 
alleged  facts  to  the  consideration  of  the  jury,  and  directed  them 
that  ''if  you  should  find  that  the  plaintiff's  wall  was  not  built 
of  proper  materials,  or  in  a  workmanlike  manner,  and  that  it 
sunk  from  its  own  inherent  defects,  or  that  the  plan  adopted 
for  the  preservation  of  the  wall  was  the  result  of  the  joint  con- 
sultation of  the  plaintiff  and  defendants,  or  was  in  pursuance 
of  the  advice  and  direction  of  the  plaintiff,  and  that  the  plan 
was  carefully  and  skilfully  executed,  even  though  by  a  different 


632 


CONDUCT    OF   THE    TRIAL. 


[Chap,  a  V. 


plan  the  wall  might  have  been  saved;  in  either  of  these  cases 
you  will  find  for  the  defendants.  If  on  both  of  these  points 
you  should  find  for  the  plaintiff,  then  you  will  say  what  damages 
the  plaintiff  has  sustained,"  etc. 

The  jury  returned  a  negative  answer  to  the  first  two  questions 
submitted,  assessed  damages  in  favor  of  the  plaintiff  for  $433.75 
and  further  found  other  facts. 

A  motion  for  a  new  trial  was  made,  but  judgment  was  entered 
for  the  plaintiff  for  the  damages  found  by  the  jury. 

It  was  assigned  for  error  that  the  court  erred  in  entering 
judgment  in  favor  of  the  plaintiff  on  the  special  verdict  for 
various  reasons  assigned. 

Coulter,  J.  The  judgment  in  the  court  below  is  founded 
partly  on  facts  found  by  a  special  verdict,  and  partly  on  what 
the  court  say  are  undisputed  facts.  The  court  enumerates  to 
the  jury  what  are  the  undisputed  facts,  and  directs  them  to  find 
a  special  verdict  on  the  disputed  facts.  The  court  say  to  the 
jury,  "It  is  therefore  agreed  that  you  shall  find  a  special  ver- 
dict on  the  disputed  facts,  and  that  the  court  shall  enter  such 
judgment  thereon,  and  on  the  facts  not  disputed,  as  the  law  re- 
quires. ' '  The  paper  book  states  that  the  jury  returned  negative 
answers  to  the  two  first  points  submitted  to  them,  and  then  found 
specially,  as  to  the  disputed  facts. 

This  proceeding  is  entirely  anomalous.  It  is  unknown,  and 
unrecognized  by  the  common  law,  or  by  the  practice  under  the 
statute  of  Westminster  tlie  2d,  13  Ed.  1,  Chap.  30,  which  in  fact 
originated  the  special  verdict,  as  it  now  exists.  There  did  exist 
another  species  of  special  verdict,  as  where  the  jury  returned  a 
general  verdict  for  the  plaintiff,  subject,  nevertheless,  to  the 
opinion  of  the  court,  on  a  special  case,  stated  by  the  counsel, 
on  both  sides,  on  a  matter  of  law :  3  Black,  378.  But  this  pro- 
ceeding has  gone  out  of  practice,  perhaps  never  existed  in  Penn- 
sylvania, and  is  nothing  like  the  present  case.  A  special  ver- 
dict is  where  the  jury  find  the  facts  of  the  case,  leaving  the 
ultimate  decision  of  the  cause  upon  those  facts,  to  the  court, 
concluding  conditionally,  that  if  upon  the  whole  matter  thus 
found,  the  court  should  be  of  opinion  that  the  plaintiff  had  a 
good  cause  of  action,  they  then  find  for  the  plaintiff,  and  assess  his 
damages;  if  otherwise,  then  for  the  defendant:  3  Black,  378; 


Sec.  8.]  wallingford  v.  dunlap.  633 

Boote  on  Suit  at  Law,  158.  It  is  of  the  very  essence  of  a  special 
verdict  that  the  jury  should  find  the  facts,  on  which  the  court  is 
to  pronounce  judgment  according  to  law;  1  East,  111;  Lord 
Raymond,  1581.  And  the  court  will  not  intend  any  thing, 
especially  any  fact  not  found  by  the  jury;  1  Wilson,  55 ;  1  Caine, 
60;  20  Johns.  Rep.  294.  An  instance  of  which  is  found  in  11 
Wheaton,  445,  where  the  assent  of  an  executor  is  necessary,  if 
the  jury  find  a  special  verdict  stating  facts  from  which  they 
might  have  inferred  such  assent,  but  do  not  find  it  expressly, 
the  court  cannot  intend  it.  I  apprehend  there  is  no  reported 
case,  of  any  authority,  where  the  court  have  gone  beyond  the 
facts  found  in  the  special  verdict ;  for  it  is  the  province  of  the 
jury  to  judge  of  and  find  the  facts,  and  the  province  of  the  court 
to  declare  the  law  on  the  facts  so  found.  The  undisputed  facts 
ought  to  have  been  incorporated  into  the  special  verdict.  And 
if  they  had  omitted  them  by  mistake,  the  court  might  upon 
motion  and  full  evidence,  have  amended  the  special  verdict: 
Strange,  514;  4  Watts.  259.  But  the  court  is  confined  to  the 
facts  found  by  the  special  verdict :  2  Yeates,  543 ;  3  Yeates,  373. 
And  when  a  special  verdict  is  given,  the  court  ought  to  confine 
its  judgment  to  that  verdict. 

As  to  what  the  jury  intended  by  a  negative  answer  to  the  two 
first  points  submitted  to  them,  it  is  not  permitted  us  to  intend 
what  they  meant,  as  they  have  not  expressly  found.  Nor  can 
we  predicate  our  judgment  partly  upon  what  the  court  below 
say  were  undisputed  facts,  and  partly  on  the  facts  found. 

The  special  verdict  is  defective.  We  have  no  power  to  amend 
it.  It  is  the  duty  of  the  plaintiff's  counsel  to  have  the  special 
verdict  properly  drawn  up,  settled  and  entered  on  the  record: 
1  Johns.  Cases,  393;  Coleman's  Cases,  107.  If  the  facts  are  re- 
duced to  writing  at  the  time  of  the  trial,  and  have  the  assent  of 
the  jury,  the  verdict  may  be  moulded  into  form  afterwards, 
with  the  approbation  of  the  court. 

But  this  special  verdict  is  so  defective  and  erroneous,  and 
the  judgment  so  anomalous  in  being  entered  partly  on  the  ver- 
dict, and  partly  on  what  are  called  undisputed  facts,  that  we 
must  do  what  has  often  been  done  before,  reverse  the  judgment 
and  send  the  case  back  for  a  new  trial.  If  a  special  verdict  is 
defective  or  uncertain,  and  cannot  be  amended,  judgment  ought 
not  to  be  entered  upon  it.     And  when  it  is  entered,  the  judg- 


684 


CONDUCT    OP   THE   TRIAL. 


[Chap.  IV. 


ment  must  be  reversed  as  erroneous :  Lord  Ray  'd,  1584 ;  Strange, 
887-1124;  6  Cranch,  268;  1  East,  111. 

Judgme7it  reversed  and  venire  de  novo  awarded.^ 


ROBERTS  V.  HOPKINS. 


11  Sergeant  &  Rawle,  202.     [1824. 


TiLGHMAN,  C.  J.  In  this  ease  the  jury  found  a  verdict  for  the 
plaintiff,  with  $517  damages,  and  six  cents  costs,  "subject  to 
the  opinion  of  the  court  on  the  facts  proved."  What  these  facts 
were,  we  know  not ;  so  that  it  is  impossible  for  us  to  say,  whether 
the  judgment  was  right  or  wTong.  If  such  a  verdict  could  be 
supported,  the  party  against  whom  judgment  was  given,  would 
be  cut  off  from  the  benefit  of  a  writ  of  error.  The  jury  have 
no  right  to  throw  the  facts  and  the  law,  on  the  court,  though 
they  may  find  the  facts  and  submit  the  law.  But  in  such  case, 
the  facts  appearing  of  record,  either  party  Tuaj  have  a  writ  of 
error.  In  the  present  case,  nothing  is  found  absolutely.  The 
damages  are  not  assessed  absolutely,  but  subject  to  the  court's 
opinion  on  facts  which  do  not  appear.  It  is  an  imperfect  ver- 
dict. The  parties  may  submit  their  cause  to  the  court,  in  what 
manner  they  please,  by  consent;  and  if  they  think  proper  to 
submit  it,  so  as  to  preclude  each  other  from  a  writ  of  error,  it 
is  all  very  well.  But  nothing  of  that  kind  appears  here.  We 
find  nothing  on  the  record  but  the  verdict  and  judgment.  In 
the  case  of  Donner  v.  Lewis,  at  May  term,  1822,  there  was  a 
verdict  for  the  plaintiff  in  an  ejectment,  "subject  to  the  opinion 
of  the  court,"  without  any  mention  of  facts.  We  reversed  the 
judgment  and  ordered  a  new  trial.     The  case  before  us  falls 


1  Accord,  Hodges  v.  Easton,  106 
U.  S.  408.  The  contrary  rule  in 
Wisconsin  appears  to  be  the  result 
of  a  statute;  see  Orton,  J.,  in 
Stringham  v.  Cook,  75  Wis.  589: 
"The  statute  requires  only  contro- 
verted issues  of  fact  to  be  submitted 
to  the  jury  for  special  verdict,  and 
there  was  no  controversy  about  the 
ownership   of   the  land   or   right   of 


possession  of  the  property,  and  the 
evidence  was  undisputed.  There 
was  no  evidence  to  overcome  the 
presumption  or  prima  facie  evidence 
of  title  in  fee,  imported  by  the  cer- 
tificate. ' ' 

The  verdict  need  not  include  mat- 
ters admitted  by  the  pleadings. 
Barto  V.  Hinsard,  8  N.  Y.  483. 


Sec.  8.]  barnes  v.  williams.  635 

within  tlie  same  prinicple.  A  reference  to  facts  proved,  without 
stating  these  facts,  is  no  better  than  if  facts  had  not  been  men- 
tioned at  all.  It  is  the  opinion  of  the  court  that  the  judgment 
should  be  reversed  and  a  venire  de  novo  awarded. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


BARNES  V.  WILLIAMS. 

11   Wheaton,  415.     [1826.] 

Mr.  Chief  Justice  Marshall  stated,  that,  upon  inspecting  the 
record,  it  had  been  discovered,  that  the  special  verdict  found  in 
the  case  was  too  imperfect  to  enable  the  court  to  render  a  judg- 
ment upon  it.  The  claim  of  the  plaintiffs  being  founded  upon 
a  bequest  of  certain  slaves,  it  was  essential  to  a  recovery  at  law, 
that  the  assent  of  the  executor  to  the  legacy  should  be  proved. 
Al chough,  in  the  opinion  of  the  court,  there  was  sufficient  evi- 
dence in  the  special  verdict  from  which  the  jury  might  have 
found  the  fact,  yet  they  have  not  found  it,  and  the  court  could 
not,  upon  a  special  verdict,  intend  it.  The  special  verdict  was 
defective  in  stating  the  evidence  of  the  fact,  instead  of  the  fact 
itself.  It  was  impossible,  therefore,  that  a  judgment  could  be 
pronounced  for  the  plaintiff.  So,  as  to  the  defendant's  defense 
under  the  statute  of  limitations,  the  special  verdict  did  not  find 
any  facts  by  which  the  court  could  ascertain  at  what  time  the 
right  of  action  accrued.  It  was  not  stated  that  the  plaintiff 
and  defendant  were  ever  resident  in  the  same  state  at  the  same 
time.  Although  it  was  found,  that  E.  D.  Barnes,  one  of  the 
plaintiffs,  came  into  the  State  of  Tennessee  after  he  arrived  at 
the  age  of  twenty-one  years,  and  more  than  three  years  before 
the  suit  was  brought,  yet  it  was  not  found,  that  during  any  part 
of  that  time,  the  defendant,  Williams,  was  resident  in  that  state. 
The  case  was,  therefore,  too  imperfectly  stated  to  enable  the 
court  to  decide  the  questions  upon  which  the  opinions  of  the 
judges  of  the  Circuit  Court  were  opposed,  and  the  cause  was 
remanded  to  the  court,  with  directions  to  award  a  venire  facias 
de  novo. 


G36  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

GORDON  V.  STOCKDALE. 

89  Indiana,  240.     [1883.] 

Morris,  c.  *  *  *  The  appellant  insists  that  the  verdict 
does  not  find  that  appellee  was  the  owner  of  the  wheat  in  contro- 
versy, as  alleged  in  the  complaint.  The  appellee  contends  that 
the  verdict  finds  facts  from  which  the  conclusion  of  ownership 
necessarily  follows  as  matter  of  law. 

The  jury  do  not  find  directly  and  in  so  many  words,  that  the 
wheat  belonged  to  the  appellee,  but  they  do  find  that  he  sowed 
the  wheat  as  tenant,  under  a  contract  which  gave  the  one-half 
of  it  to  him,  and  the  right  to  the  possession  of  the  whole  of  it 
for  the  purpose  of  harvesting,  threshing  and  dividing  it. 

It  is  not  claimed  by  the  appellant  in  argument  that  the  con- 
tract between  the  appellee  and  Henry  P.  Chapman  was  not 
made  with  the  consent  of  Mrs.  Chapman ;  but,  as  claimed  by  the 
appellee,  it  seems  to  be  conceded  that  the  contract  was  valid  and 
binding  upon  her,  and  upon  the  parties  to  it.  Assuming,  in 
view  of  this  concession  on  the  part  of  the  appellant,  that  Henry 
P.  Chapman  was  authorized  by  Mrs.  Chapman  to  make  the  con- 
tract returned  with  and  as  a  part  of  the  verdict,  we  think  it  quite 
clear  that  the  facts  found  show  that  the  appellee  was  the  owner 
of  one-half  the  wheat  growing  on  the  "Alcorn  farm,"  and  en- 
titled to  the  possession  of  the  whole  of  it  until  harvested  and 
threshed.  The  contract  gave  him  the  right  to  harvest  and  thresh 
the  wheat,  and  by  its  express  terms  he  was  the  owner  of  one-half 
of  it.  The  conclusion  of  law  upon  the  facts  thus  found  is,  that 
the  appellee  owned  one-half  the  wheat,  and  was  entitled  to  the 
possession  of  the  whole  of  it  for  the  purpose  of  harvesting,  thresh- 
ing, and  dividing  it.  The  appellant  says  that  the  ownership  is 
not  found  otherwise  than  by  inference.  That  may  be  true,  but 
the  inference  is  a  legal  conclusion  which  results  irresistibly  from 
the  facts  found. 

It  is  also  argued  by  the  appellant  that  the  contract  made  Chap- 
man and  the  appellant  partners.  The  contract,  as  \o  the  wheat, 
provides  otherwise.  It  expressly  declares  that  each  shall  own 
one-half  the  wheat. 

It  is  also  contended  by  the  appellant  that  the  iury  have  not 
found  a  conversion  of  the  wheat  by  him:  that  they  have  only 
found  facts  which  operate  as  evidence  of  a  conversion;  that  a 


Sec.  8.]  Gordon  v.  stockdale.  637 

demand  and  refusal  are  evidence  of  conversion,  but  not  conclu- 
sive of  the  fact  of  conversion.  This  is  true,  and  had  the  jury- 
found  nothing  more  than  this,  the  judgment  could  not  be  justi- 
fied. Locke  V.  Merchants  Nat.  Bank,  66  Ind.  353.  But  the  jury 
also  found  that  the  defendant  took  possession  of  the  growing 
wheat,  excluded  the  appellee  from  it,  harvested  and  threshed  it, 
and  refused  to  deliver  an^^  part  of  it,  upon  demand,  to  the  ap- 
pellee. The  acts  amounted  to  a  conversion  of  the  wheat,  and  not 
merely  to  evidence  of  a  conversion  of  it.  Taking  possession  of 
the  wheat  and  cutting  and  threshing  it  were  acts  of  dominion 
wrongfully  exerted  over  the  property  in  dispute,  in  defiance  of 
the  rights  of  the  appellee,  and  amounted  to  a  conversion  of  it. 
If,  as  the  verdict  finds,  the  appellant  exercised  dominion  over  the 
wheat,  in  exclusion  or  in  defiance  of  the  appellee's  rights,  this, 
in  law,  was  a  conversion.  Cooley  Torts,  448 ;  Thompson  v.  Cur- 
rier, 24  N.  H.  237 ;  Shaw  v.  Beckett,  25  Yt.  423.  We  think  there 
is  no  error  in  the  record. 

Ber  Curiam.  It  is  ordered,  upon  the  foregoing  opinion,  that 
the  judgment  below  be  affirmed,  at  the  cost  of  the  appellant. 

(d)     Special  Findings. 

Hurd's  Rev.  Statutes  of  Illinois,  1913,  Chap.  110. 

[79.  May  Render  General  or  Special  Verdict — ^When  to 
Find  Specially  on  Question  of  Fact — Refusal  to  Submit 
Question  of  Fact,  Etc. — When  Special  Finding  of  Fact  In- 
consistent With  General  Verdict.]  §  79.  In  all  trials  by 
jury  in  civil  proceedings  in  this  state,  in  courts  of  record,  the 
jury  may  render,  in  their  discretion,  either  a  general  or  a  special 
verdict ;  and  in  any  case  in  which  they  render  a  general  verdict, 
they  may  be  required  by  the  court,  and  must  be  so  required  on 
request  of  any  party  to  tlie  action,  to  find  specially  upon  any 
material  question  or  questions  of  fact  which  shall  be  stated  to 
them  in  writing,  which  questions  of  fact  shall  be  submitted  by 
the  party  requesting  the  same  to  the  adverse  party  before  the 
commencement  of  the  argument  to  the  jury.  Submitting,  or 
refusing  to  submit  a  question  of  fact  to  the  jury  when  requested 
by  a  party,  as  above  provided,  may  be  excepted  to  and  be  re- 
view on  appeal  or  writ  of  error,  as  a  ruling  on  a  question  of 
law.     When  the  special  finding  of  fact  is  inconsistent  with  the 


638  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

general  verdict,  the  former  shall  control  the  latter  and  the  court 
may  render  judgment  accordingly.^ 


RICHARDSON  v.  WEARE. 

62  New  Hampshire,  80.     [1882.] 

Case  for  damages  from  a  defective  highway,  tried  on  the 
general  issue.  After  the  jury  had  received  general  instructions, 
M'hich  included  the  instruction  that  if  the  injury  was  in  any 
degree  the  result  of  the  plaintiff's  want  of  ordinary  care,  the 
verdict  must  be  for  the  defendants,  by  request  of  the  defendants' 
counsel  the  jury  were  directed  to  answer  this  question :  Did  the 
injury  to  the  plaintiff  occur  in  consequence  of  any  neglect  or 
fault  on  his  part  ?  A  general  verdict  was  returned  for  the  plain- 
tiff, and  the  special  question  was  answered  in  the  affirmative. 
The  court  ordered  judgment  for  the  defendants,  and  plaintiff 
excepted. 

Allen,  J.  It  was  decided,  in  Walker  v.  Sawyer,  13  N.  H. 
191,  196,  197,  that,  in  a  case  tried  on  the  general  issue,  the  court 
would  not  submit  a  particular  question  of  fact  to  be  found  and 
returned  by  their  verdict,  without  the  consent  of  the  parties. 
But  when  it  is  proposed  to  submit  specific  questions  to  the  jury, 
it  will  be  taken  for  granted  that  the  parties  assent,  unless  they 
object  at  the  time,  and  before  the  jury  retires.  Willard  v.  Stev- 
ens, 24  N.  H.  271,  277;  Allen  v.  Aldrich,  29  N.  H.  63.  And 
later,  in  Barstow  v.  Sprague,  40  N.  H.  27,  33,  it  has  been  decided 
that  the  court,  against  the  objection  of  either  or  both  parties, 
may  properly  direct  a  jury  to  return,  with  a  general  verdict, 
answers  to  specific  questions  submitted  to  them.  No  objection 
having  been  taken,  at  the  time,  to  the  submission  of  the  special 

1  Vaughan,    C.    J.,    in    Bnshell  's  all  agree  to  find  their  issue  for  the 

case,    Vaughan,    135:      "The    legal  plaintiff    or    defendant,    they    may 

verdict   of  the  jury  to  be  recorded  differ  in  the  motives  wherefore,  as 

is,   finding   for   the   plaintiff   or   de-  well   as  judges  in   giving  judgment 

fendant.       "What     they     answer,     if  for  the  plaintiff  or   defendant  may 

asked     questions     concerning     some  differ  in  the  reasons  wherefore  they 

particular  fact,  is  not  of  their  ver-  give   that   judgment,   which   is   very 

diet  essentially,  nor  are  they  bound  ordinary." 
to  agree  in  such  particulars;  if  they 


I 


Sec.  8.]  walker  v.  southern  pac.  r.  r.  co.  639 

question  to  the  jurj^  in  this  ease,  the  plaintiff  must  be  understood 
to  have  consented,  and  the  objection  after  verdict  comes  too  late. 
The  special  finding  of  fact  was  conclusive  (Walker  v.  Sawyer, 
supra,  196,  197;  Willard  v.  Stevens,  supra,  211),  and,  being  a 
material  fact  upon  which  the  general  result  depends,  it  must 
control  the  general  verdict.  The  court  having  given  specific  and 
correct  instructions  to  the  jury  upon  the  subject,  and  that  their 
general  verdict  must  be  for  the  defendants,  if  they  should  answer 
the  question  in  the  affirmative,  the  plaintiff  could  not  have  been 
prejudiced  nor  the  jury  embarrassed  by  the  question.  Johnson 
V.  Haverhill,  35  N.  H.  74,  87.  Upon  the  answer  to  the  special 
question,  the  defendants  were  entitled  to  a  general  verdict  and 
judgment. 

Exceptions  overruled.'^ 


"WALKER  V.  SOUTHERN  PAC.  R.  R.  CO. 

165  U.  S.  593.      [1896.] 

On  November  3,  1886,  A.  C.  Walker  commenced  this  action  in 
the  District  Court  of  the  Second  Judicial  District  of  the  Terri- 
tory of  New  Mexico  in  and  for  the  county  of  Socorro,  against 
the  railroad  company  defendant,  to  recover  damages  resulting 
from  an  overflow  of  his  lands,  caused,  as  charged,  by  a  wrongful 
obstruction  of  a  natural  watercourse.  Subsequently,  an  amended 
declaration  was  filed,  and  after  the  death  of  A.  C.  Walker  the 
action  -was  revived  in  the  name  of  his  administratrix,  the  present 
plaintiff  in  error.  After  some  preliminary  proceedings,  a  trial 
was  had  in  December,  1892,  on  which  trial  the  jury  returned  a 
general  verdict,  finding  the  defendant  guilty,  and  assessing  the 
plaintiff's  damages  at  $9212.50.  At  the  same  time  the  jury 
returned,  in  response  to  certain  question  submitted  by  the  court, 
special  findings  of  fact.  The  trial  court,  overruling  all  other 
motions,  entered  a  judgment  in  favor  of  the  defendant,  on  the 
ground  that  the  special  findings  of  fact  were  inconsistent  with 
and  controlled  the  general  verdict;  and  that  upon  such  findings 
of  fact  the  defendant  was  entitled  to  judgment.  The  case  was 
thereaf'ar  taken  to  the  Supreme  Court  of  the  territory,  by  which 

1  A  special  finding  may  show  that  the  prevailing  party  to  retain  his 
the  admission  of  incompetent  evi-  verdict.  Barstow  v.  Sprague,  40 
dence  was  harmless,  and  thus  enable       N.  H.  27. 


640  •  CONDUCT   OP   THE    TRIAL.  [ChAP.    IV. 

court,  on  August  26,  1893,  the  judgment  was  affirmed,  34  Pac. 
Rep.  43,  and  thereupon  the  plaintiff  sued  out  this  writ  of  error. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

The  testimony  was  not  preserved,  and  the  case  is  submitted  to 
us  upon  the  pleadings,  the  verdict,  the  special  findings  of  fact 
and  the  judgment ;  and  on  the  record  as  thus  presented  plaintiff 
in  error  rests  her  claim  of  reversal  upon  three  propositions : 
First,  that  the  act  of  the  territorial  legislature,  authorizing 
special  findings  of  fact  and  providing  for  judgment  on  the  special 
findings,  if  inconsistent  with  the  general  verdict  (Laws  of  New 
Mex.  1889,  Chap.  45,  p.  97),  is  in  contravention  of  the  Seventh 
Amendment  to  the  Constitution  of  the  United  States,  which 
reads : 

' '  In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined 
in  any  court  of  the  United  States,  than  according  to  the  rules 
of  the  common  law." 

Second,  that  there  is  no  such  conflict  between  the  general 
verdict  and  the  special  findings  as  authorized  a  judgment  con- 
trary to  the  general  verdict;  and,  third,  that  if  there  be  any 
conflict  between  the  special  findings  and  the  general  verdict,  the 
special  findings  are  so  inconsistent  with  each  other  as  to  neutra- 
lize and  destroy  themselves. 

First,  with  regard  to  the  constitutional  question,  the  specific 
objection  is  thus  stated  in  the  brief : 

"It  is  not  contended,  although  the  English  authorities  would 
appear  to  warrant  the  contention,  that  at  the  common  law  the 
judge  might  not  require  the  jury  to  answer  special  questions,  or 
interrogate  the  jury  as  to  the  grounds  upon  which  their  general 
verdict  was  found;  but  it  is  most  earnestly  contended  that  the 
extent  of  the  power  of  the  judge,  if  in  his  opinion  the  special 
findings  or  answers  of  the  jury  to  interrogatories  were  inconsist- 
ent with  the  general  verdict,  was  to  set  aside  the  general  verdict 
and  award  a  venire  de  novo,  while  under  this  statute  authority 
is  attempted  to  be  conferred  upon  the  judge  to  render  final  judg- 
ment upon  the  special  findings." 

We  deem  it  unnecessary  to  consider  the  contention  of  defend- 
ant in  error  that  the  territorial  courts  are  not  courts  of  the 
United  States,  and  that  the  Seventh  Amendment  is  not  operative 
in  the  Territories,  for  by  the  act  of  April  7,  1874,  Chap.  80,  18 


Sec.  8.]  walker  v.  southern  pac.  r.  r.  co.  641 

Stat.  27,  Congress,  legislating  for  all  the  territories  declared 
that  no  party  "shall  be  deprived  of  the  right  of  trial  by  jury  in 
cases  cognizable  at  common  law;"  and  while  this  may  not  in 
terms  extend  all  the  provisions  of  the  Seventh  Amendment  to 
the  territories,  it  does  secure  all  the  rights  of  trial  by  jury  as 
they  existed  at  common  law. 

The  question  is  whether  this  act  of  the  territorial  legislature 
in  substance  impairs  the  right  of  trial  by  jury.  The  Seventh 
Amendment,  indeed,  does  not  attempt  to  regulate  matters  of 
pleading  or  practice,  or  to  determine  in  what  way  issues  shall 
be  framed  by  which  questions  of  fact  are  to  be  submitted  to  a 
jury.  Its  aim  is  not  to  preserve  mere  matters  of  form  and  pro- 
cedure but  substance  of  right.  This  requires  that  questions  of 
fact  in  common  law  actions  shall  be  settled  by  a  jury,  and  that 
the  court  shall  not  assume  directly  or  indirectly  to  take  from 
the  jury  or  to  itself  such  prerogative.  So  long  as  this  substance 
of  right  is  preserved  the  procedure  by  which  this  result  shall  be 
reached  is  wholly  within  the  discretion  of  the  legislature,  and 
the  courts  may  not  set  aside  any  legislative  provision  in  this 
respect  because  the  form  of  action — the  mere  manner  in  which 
questions  are  submitted — is  different  from  that  which  obtained 
at  the  common  law. 

Now  a  general  verdict  embodies  both  the  law  and  the  facts. 
The  jury,  taking  the  law  as  given  by  the  court,  apply  that  law  to 
the  facts  as  they  find  them  to  be  and  express  their  conclusions  in 
the  verdict.  The  power  of  the  court  to  grant  a  new  trial  if  in 
its  judgment  the  jury  have  misinterpreted  the  instructions  as  to 
the  rule  of  law  or  misapplied  them  is  unquestioned,  as  also  when 
it  appears  that  there  was  no  real  evidence  in  support  of  any 
essential  fact.  These  things  obtained  at  the  common  law ;  they 
do  not  trespass  upon  the  prerogative  of  the  jury  to  determine 
all  questions  of  fact,  and  no  one  today  doubts  that  such  is  the 
legitimate  duty  and  function  of  the  court,  notwithstanding  the 
terms  of  the  constitutional  guarantee  of  right  of  trial  by  jury. 
Beyond  this,  it  was  not  infrequent  to  ask  from  the  jury  a  special 
rather  than  a  general  verdict,  that  is,  instead  of  a  verdict  for  or 
against  the  plaintiff  or  defendant  embodying  in  a  single  declara- 
tion the  whole  conclusion  of  the  trial,  one  which  found  specially 
upon  the  various  facts  in  issue,  leaving  to  the  court  the  subse- 
quent duty  of  determining  upon  such  facts  the  relief  which  the 
law  awarded  to  the  respective  parties. 

H.  T.  p.— 41 


642  CONDUCT    OF   THE   TRIAL,  [ChAP.    IV. 

It  was  also  a  common  practice  when  no  special  verdict  was 
demanded  and  when  only  a  general  verdict  was  returned  to  inter- 
rogate the  jury  upon  special  matters  of  fact.  Whether  or  no  a 
jury  was  compelled  to  answer  such  interrogations,  or  whether, 
if  it  refused  or  failed  to  answer,  the  general  verdict  would  stand 
or  not,  may  be  questioned.  Mayor,  etc.,  v.  Clark,  3  Ad.  &  El. 
506.  But  the  right  to  propound  such  interrogatories  was  un- 
doubted and  often  recognized.  Walker  v.  Bailey,  65  Maine, 
354 ;  Spurr  v.  Shelburne,  131  Mass.  429.  In  the  latter  case  the 
court  said  (page  430)  :  "It  is  within  the  discretion  of  the  presid- 
ing justice  to  put  inquiries  to  the  jury  as  to  the  grounds  upon 
which  they  found  their  verdict,  and  the  answers  of  the  foreman, 
assented  to  by  his  fellows,  may  be  made  a  part  of  the  record,  and 
will  have  the  effect  of  special  findings  of  the  facts  stated  by  him. 
And  no  exception  lies  to  the  exercise  of  this  discretion.  Dorr  v. 
Fenno,  12  Pick.  521;  Spoor  v.  Spooner,  12  Met.  281;  Mair  v. 
Bassett,  117  Mass.  356;  Lawler  v.  Earle,  5  Allen,  22,"  So  that 
the  putting  of  special  interrogatories  to  a  jury  and  asking  for 
specific  responses  thereto  in  addition  to  a  general  verdict  is  not 
a  thing  unknown  to  the  common  law,  and  has  been  recognized 
independently  of  any  statute.  Beyond  this  we  cannot  shut  our 
eyes  to  the  fact  that  in  many  states  in  the  Union,  in  whose  con- 
stitutions is  found  in  the  most  emphatic  language  an  assertion 
of  the  inviolability  of  trial  by  jury,  are  statutes  similar  to  the  one 
enacted  by  the  territorial  legislature  of  New  Mexico;  that  those 
statutes  have  been  uniformly  recognized  as  valid,  and  that  a 
large  amount  of  the  litigation  in  the  courts  is  carried  through 
in  obedience  to  the  provisions  of  such  statutes.  It  would  cer- 
tainly startle  the  profession  to  be  told  that  such  statutes  con- 
travene a  constitutional  requirement  of  the  inviolability  of  jury 
trials. 

Indeed,  the  very  argument  of  counsel  for  plaintiff  in  error  is 
an  admission  that  up  to  a  certain  extent  those  statutes  are  un- 
doubtedly valid.  That  argument  is  practically  that  when  the 
specific  findings  are  returned  and  found  to  be  conflicting  with  the 
general  verdict  the  court  is  authorized  to  grant  a  new  trial,  but 
can  do  no  more.  But  why  should  the  power  of  the  court  be 
thus  limited?  If  the  facts  as  specially  found  compel  a  judg- 
ment in  one  way,  why  should  not  the  court  be  permitted  to  apply 
the  law  to  the  facts  as  thus  found  ^  It  certainly  does  so  when  a 
special  verdict  is  returned.    When  a  general  verdict  is  returned 


Sec.  8.]  walker  v.  southern  pac.  r.  r.  co.  643 

and  the  court  determines  that  the  jury  have  either  misinterpreted 
or  misapplied  the  law  the  only  remedy  is  the  award  of  a  new 
trial,  because  the  constitutional  provision  forbids  it  to  find  the 
facts.  But  when  the  facts  are  found  and  it  is  obvious  from  the 
inconsistency  between  the  facts  as  found  and  the  general  ver- 
dict that,  in  the  latter,  the  jury  have  misinterpreted  or  misap- 
plied the  law,  what  constitutional  mandate  requires  that  all 
should  be  set  aside  and  a  new  inquiry  made  of  another  jury? 
Of  what  significance  is  a  question  as  to  a  specific  fact?  Of 
what  avail  are  special  interrogatories  and  special  findings  thereon 
if  all  that  is  to  result  therefrom  is  a  new  trial,  which  the  court 
might  grant  if  it  were  of  opinion  that  the  general  verdict  con- 
tained a  wrong  interpretation  or  application  of  the  rules  of  law? 
Indeed,  the  very  thought  and  value  of  special  interrogatories  is 
to  avoid  the  necessitj-  of  setting  aside  a  verdict  and  a  new  trial — 
to  end  the  controversy  so  far  as  the  trial  court  is  concerned  upon 
that  single  response  from  the  jury. 

We  are  clearly  of  opinion  that  this  territorial  statute  does  not 
infringe  any  constitutional  provision,  and  that  it  is  within  the 
power  of  the  legislature  of  a  territory  to  provide  that  on  a  trial 
of  a  common  law  action  the  court  may,  in  addition  to  the  general 
verdict,  require  specific  answers  to  special  interrogatories,  and, 
when  a  conflict  is  found  between  the  two,  render  such  judgment 
as  the  answers  to  the  special  c[uestions  compel. 

For  a  full  understanding  of  the  second  question  it  is  necessary 
to  notice  the  pleadings.     *     *     * 

Now,  the  contention  of  the  defendant  in  error  is  that  it  is 
apparent,  from  the  answers  given  to  the  special  question,  that 
there  were  nc  natural  watercourses  obstructed  by  defendant's 
roadbed,  and  that  the  water  which  did  the  damage  was  simply 
surface  water.    The  second,  third,  fourth  and  fifth  are  as  follows : 

"Q.  2.  Was  there  a  cloudburst  in  the  Magdalena  or  Socorro 
mountains  on  September  8,  1886 ;  and,  if  so,  was  the  water  there- 
from the  water  which  ran  over  plaintiff's  land?    A.  Yes. 

"Q.  3.  Was  the  water  which  came  down  the  arroyos  from 
the  Magdalena  and  Socorro  mountains  on  September  8,  1886, 
surface  water?    A.  Yes. 

"Q.  4.  Was  it  customary  for  water  to  collect  and  stand  on 
plaintiff's  land,  and  land  in  the  immediate  vicinity  thereof,  in 
the  times  of  heavy  rains  or  floods?    A.  No. 


644  CONDUCT    OF   THE   TRIAL.  [ChAP.    IV. 

"Q.  5.  How  often  upon  an  average  in  any  one  year  did  the 
water  come  down  the  arroyos  leadings  toward  the  valley  in  the 
vicinity  of  Socorro  from  the  Magdalena  and  Socorro  mountains 
prior  to  September  8,  1886?  A.  According  to  the  rain  which 
fell." 

This  is  very  clear.  There  was  a  cloudburst  in  the  mountains, 
and  it  was  the  water  from  that  which  did  the  damage.  It  was 
simply  surface  water.  And  the  arroyos  through  which  the  water 
flowed  after  leaving  the  mountains  were  not  running  streams, 
natural  watercourses,  but  simply  passageways  for  the  rain  which 
fell.  Counsel  for  plaintiff  in  error,  not  questioning  that  the 
injury  done  to  the  property  of  their  client  was  by  surface  water 
— the  large  fall  which  came  from  the  cloudburst  in  the  Socorro 
or  Magdalena  mountains  on  September  8,  1886 — insist  that  it 
does  not  appear  that  such  cloudbursts  were  unusual,  and  also  that 
there  had  been  created  through  the  lapse  of  years  distinctive 
channels  by  which  the  waters  from  the  mountains  passed  down 
to  the  river  and  that  the  railroad  embankment  operated  to 
obstruct  such  channels;  that  although  these  channels  were  not 
the  beds  of  constantly  flowing  streams  they  were  wrought  by 
natural  processes  and  through  the  flowing  of  water,  not  con- 
tinuous but  at  frequent  intervals,  until  they  had  become  natural 
outlets  for  the  often  accumulating  waters  in  the  Socorro  and 
Magdalena  mountains.     *     *     * 

It  is  obvious  not  only  that  it  was  mere  surface  water  whose 
flow  was  obstructed,  not  only  that  no  natural  watercourses  were 
filled  up,  but  also  that  the  channels  which  were  obstructed  were 
not  such  ravines,  gorges  and  outlets  as  in  a  mountainous  district 
must  be  left  open  to  prevent  the  forming  of  lakes  and  reservoirs 
therein,  but  simply  the  ordinary  ditches  and  passageways  which 
surface  water  will  cut  in  a  generally  level  district  in  its  effort 
to  reach  some  flowing  stream.  It  also  appears  from  the  answer 
to  the  twenty-fifth  question  that  the  railroad  embankment  was 
constructed  before  the  buildings  of  the  plaintiff.  It  will  be  borne 
in  mind  that  the  mountains  from  which  this  surface  water  flowed 
were  from  four  to  eighteen  miles  distant,  and  from  the  foot  of 
those  mountains  to  the  Rio  Grande  river,  naturally,  the  flowing 
water  had  dug  channels  and  ditches  through  such  portions  of 
the  soil  as  afforded  the  least  obstruction  to  its  passage,  and  such 
channels  and  ditches  were  all  that  the  railroad  embankment  in 
any  way  obstructed. 


Sec.  8.]  walker  v.  southern  pac.  r.  r.  co.  645 

Does  a  lower  land  owner  by  erecting  embankments  or  other- 
wise preventing  the  flow  of  surface  water  on  to  his  premises 
render  himself  liable  to  an  upper  land  owner  for  damages 
caused  by  the  stopping  of  such  flow?  In  this  respect  the  civil 
and  common  law  are  different,  and  the  rules  of  the  two  laws  have 
been  recognized  in  different  states  of  the  Union — some  accept- 
ing the  doctrines  of  the  civil  law,  that  the  lower  premises  are 
subservient  to  the  higher,  and  that  the  latter  have  a  qualified 
easement  in  respect  to  the  former,  an  easement  which  gives  the 
right  to  discharge  all  surface  water  upon  them.  The  doctrine 
of  the  common  law  on  the  other  hand  is  the  reverse,  that  the  lower 
land  owner  owes  no  duty  to  the  upper  landowner,  that  each  may 
appropriate  all  the  surface  water  that  falls  upon  his  own  prem- 
ises, and  that  the  one  is  under  no  obligation  to  receive  from  the 
other  the  flow  of  any  surface  water,  but  may  in  the  ordinary 
prosecution  of  his  business  and  in  the  improvement  of  his  prem- 
ises by  embankments  or  otherwise  prevent  any  portion  of  the 
surface  water  coming  from  such  upper  premises.     *     *     * 

If  a  case  came  to  this  court  from  one  of  the  states  in  which 
the  doctrine  of  the  civil  law  obtains,  it  would  become  our  duty, 
having  respect  to  this  which  is  a  matter  of  local  law,  to  follow 
the  decisions  of  that  state.  And  in  like  manner  we  should  follow 
the  adverse  ruling  in  a  case  coming  from  one  of  the  states  in 
which  the  common  law  rule  is  recognized.  New  Mexico  is  a 
territory,  but  in  it  the  legislature  has  all  legislative  power  except 
as  limited  by  the  Constitution  of  the  United  States  and  the  laws 
of  congress  appertaining  thereto.  There  it  was  enacted  in  1876, 
Laws  of  New  Mex.  1876,  p.  31,  Chap.  2,  §  2,  that  "in  all  tlie 
courts  in  this  territory  the  common  law  as  recognized  in  the 
United  States  of  America  shall  be  the  rule  of  practice  and  de- 
cision." Browning  v.  Browning,  9  Pac.  Rep.  677,  682.  The 
legislature  of  New  Mexico  having  thus  adopted  the  common  law 
as  the  rule  of  practice  and  decision,  and  there  being  no  special 
statutory  provisions  in  respect  to  this  matter,  it  is  not  to  be 
wondered  at  that  the  Supreme  Court  of  the  territory  in  its 
opinion  in  the  present  case  disposed  of  this  question  in  this  single 
sentence  :  "  If  the  act  of  the  territorial  legislature  of  1889  is  con- 
stitutional, then  we  can  find  no  error  in  the  action  of  the  court 
in  setting  aside  the  general  verdict  and  entering  judgment  upon 
the  special  findings."     Obviously  the  only  question  deemed  of 


646  CONDUCT    OP   THE    TRIAL.  [ChAP.    IV. 

any  moment  by  that  court  was  the  question  in  respect  to  the 
matter  of  special  findings.     *     *     * 

Judgment  affirmed.^ 


TERRE  HAUTE  &C.  RY.  CO.  v.  VOELKER. 

129  Illinois,  540.     [1889.] 

Mr.  Justice  Bailey  delivered  the  opinion  of  the  court: 
This  was  an  action  on  the  case,  brought  by  Julia  Voelker,  ad- 
ministratrix of  the  estate  of  Edward  A^oelker,  deceased,  against 
the  Terre  Haute  and  Indianapolis  Railroad  Company,  to  recover 
damages  for  the  death  of  the  plaintiff's  intestate.  The  trial, 
which  was  had  before  the  court  and  a  jury,  resulted  in  a  ver- 
dict in  favor  of  the  plaintiff  for  $3500,  and  for  that  sum  and 
costs,  the  court,  after  denying  the  defendant's  motion  for  a  new 
trial,  gave  judgment  for  the  plaintiff.  Said  judgment  was 
affirmed  by  the  Appellate  Court  on  appeal,  and  by  an  appeal 
from  that  court  the  record  is  brought  here  for  review.  .  .  . 
Several  questions  of  fact  were,  at  the  instance  of  the  defend- 
ant, submitted  to  the  jury  for  special  findings,  one  of  which  was 
modified  by  the  court  and  submitted  as  modified.  The  action  of 
the  court  in  making  such  modifications  is  assigned  for  error. 
Said  question  was  as  follows,  the  modification  consisting  in  the 
insertion  of  the  words  in  italics: 

"Could  the  deceased,  Edward  Voelker,  if  he  had  used  ordi- 
nary care  and  diligence,  have  seen  or  heard  the  defendant's 
train  approaching  the  crossings  over  the  St.  Clair  avenue  in 
East  St.  Louis,  if  he  looked  or  listened  for  its  approach  to  said 
crossing,  before  he  drove  or  went  on  to  said  crossing,  at  the  time 
he  received  the  injury  from  the  effect  of  which  he  died?" 

To  this  question  the  jury  returned  a  negative  answer.  It  is 
clear  that  the  question,  as  proposed  by  the  defendant,  called 
for  a  finding  as  to  mere  evidentiary  facts,  none  of  which,  if 
found,  could  have  been  controlling.  There  was  no  error  there- 
fore in  refusing  to  submit  it  to  the  jury  in  that  form.  Which- 
ever way  the  jury  might  have  found,  their  finding  could  have 
had  no  effect  upon  the  general  verdict.  On  this  point  we  refer 
1  See  also  Victor  &c.  Co.  v.  Pec-  Sloeum  v.  N.  Y.  Life  Ins.  Co.,  228 
carick,  209  Fed.  568,  distinguishing      U.  S.  364. 


Sec.  8.]  acton  v.  coffman,  647 

to  what  we  have  more  fully  said  in  our  discussion  of  the  same 
proposition  in  C.  &  N.  W.  Ry.  Co.  v.  Dunleavy,  ante,  132. 

The  residue  of  the  propositions  discussed  by  the  Appellate 
Court  in  its  opinion  do  not  seem  to  be  insisted  upon  by  the  de- 
fendant's counsel  here,  and  we  therefore  infer  that,  as  to  those 
questions,  they  acquiesce  in  the  rules  laid  down  by  that  court. 
None  of  the  assignments  of  error  insisted  upon  here  are  in  our 
opinion  sustained,  and  the  judgment  of  the  Appellate  Court  will 
therefore  be  affirmed. 

Judgment  affirmsd. 


ACTON  V.  COFFMAN. 
74  Iowa,  17.      [1887.] 

Seevers,  C.  J.     *     *     * 

II.  Because  of  the  state  of  the  record,  there  is  but  one  error 
assigned  that  can  be  considered,  and  that  is  that,  under  the 
special  verdict,  judgment  should  have  been  rendered  for  the  de- 
fendant, notwithstanding  the  general  verdict.  The  court  in- 
structed the  jury  as  follows: 

"7.  If  you  find  from  the  evidence  that,  before  the  defendant 
commenced  any  criminal  proceedings  against  the  plaintiff,  if 
he  did  commence  any,  he  laid  all  the  facts  in  the  matter  before 
E.  A.  Babcock,  Esq.;  that  said  Babcock  is  an  attorney  at  law; 
that  he  acted  in  good  faith  upon  the  opinion  given  by  said  Bab- 
cock ;  that  he  believed  himself  that  there  was  cause  for  the  prose- 
cution,— then  he  is  not  liable  in  this  action,  and  your  verdict 
must  be  for  the  defendant." 

The  follo\.ing  special  interrogatories  were  submitted  to  the 
jury: 

"(4)  Did  the  defendant,  Coffman,  seek  the  advice  of  an 
attorney  before  he  instituted  the  criminal  proceedings  complained 
of  by  plaintiff?  (5)  Did  that  attorney,  with  a  full  knowledge 
of  all  the  facts  in  the  case,  advise  said  Coffman  that  in  his  opin- 
ion a  criminal  suit  was  maintainable  against  this  plaintiff? 
(6)  Did  defendant  act  on  such  advice  in  commencing  the  crimi- 
nal proceedings  in  controversy  herein?" 

To  each  of  these  interrogatories  an  affirmative  answer  was 
given  by  the  jury,  and  the  question  is  whether  the  facts  thus 


648  CONDUCT    OF    THE    TRIAL.  [ChAP.    IV. 

found  conclusively  show  that  the  general  verdict  is  so  inconsis- 
tent therewith  that  it  must  be  set  aside.  It  must  be  assumed 
that  the  jury  followed  the  instructions  above  set  out.  There- 
fore, they  must  have  found  that,  although  plaintiff  stated  the 
facts  to  counsel  and  acted  on  the  advice  of  counsel  in  commenc- 
ing the  criminal  action,  yet  in  doing  so  he  did  not  act  in  good 
faith,  or  that  he  himself  did  not  believe  there  was  probable 
cause  for  the  prosecution.  It  will  be  observed  that  the  question 
of  the  good  faith  of  the  defendant,  or  whether  he  believed  there 
was  probable  cause  for  the  prosecution,  was  not  submitted  to  the 
.jury  in  the  special  interrogatories,  and,  therefore,  the  general 
and  special  verdicts  are  not  inconsistent,  and  both  can  stand  in 
full  force.  It  is  sufficient  to  say  that,  as  the  instruction  above 
referred  to  was  not  excepted  to,  it  constitutes  the  law  of  the 
ease,  and  it  was  the  duty  of  the  .jury  to  follow  it,  whether  right 
or  wrong;  but  we  incline  to  think  it  is  a  correct  statement  of 
the  law.     Center  v.  Spring,  2  Iowa,  393, 

The  court  did  not  err  in  refusing  to  enter  judgment  for  the 
defendant  on  the  special  verdict.^ 

Affirmed. 


PENNSYLVANIA  CO  v.  SMITH. 

98  Indiana,  42.     [1884.] 

Black,  C.  The  appellee  sued  the  appellant  and  the  Louis- 
ville, Evansville  and  St.  Louis  Railway  Company,  and  the  Jeffer- 
sonville,  Madison  and  Indianapolis  Railroad  Company,  the  sub- 
stance of  the  complaint  being  that,  on,  etc.,  the  defendants  were 
operating  a  railroad  running  through  the  city  of  New  Albany, 

1  Greene,  J.,  in  Osburn  v.  Ey.,  75  findings.     The  final  conclusion  of  a 

Kan.    746:      "A   trial   court   has   a  jury   is    expressed   in   their    general 

very  wide   discretion   in   granting  a  verdict,  and  special  findings  are  per- 

new  trial  where  the  special  findings  mitted  only  for  the  purpose  of  as- 

are    inconsistent   with    one    another,  certaining    whether    the    jury    have 

or  are  evasive,  or  apparently  unfair,  considered  and  found  the  elemental 

or  are  inconsistent  with  the  general  ingredients   which   should   inhere  in 

verdict,  but  the  same  rule  does  not  and    support    their    general   verdict, 

obtain     where,     notwithstanding     a  In  passing  upon  a  motion  for  judg- 

general   verdict,   the   court   is   asked  ment  upon  special  findings  notwith- 

to    enter    judgment    on    the    special  standing    the    general    verdict,    the 


5 

I 


Sec.  8.]  Pennsylvania  co.  v.  smith,  649 

and  were  in  possession  of  and  operating  on  said  railroad  a  loco- 
motive engine  and  a  train  of  ears  thereto  attached ;  and  that 
while  the  plaintiff  was  engaged  in  unloading  boxes  of  glass  from 
his  wagon  into  cars  standing  on  a  railroad  switch,  the  defend- 
ants, by  their  servants,  so  negligently  drove  and  conducted  said 
engine  and  train  that  thereby  the  same  ran  and  were  driven 
against  the  plaintiff's  said  wagon  and  his  horses  harnessed 
thereto,  without  any  fault  or  negligence  on  his  part,  thereby 
breaking  and  destroying  said  wagon,  wounding  and  disabling 
said  horses,  etc.,  whereby  the  plaintiff  was  damaged,  etc. 

The  defendants  severally  answered  by  general  denial.  The 
cause  was  tried  by  jury,  and  a  verdict  was  returned  against  the 
appellant  and  in  favor  of  the  other  defendants.  The  jury  also 
returned  answers  to  interrogatories  asked  by  the  defendants. 

A  motion  for  judgment  in  favor  of  the  appellant  upon  the 
answers  of  the  jury  to  interrogatories,  notwithstanding  the  gen- 
eral verdict,  and  the  appellant's  motion  for  a  new  trial,  were 
overruled,  and  judgment  was  rendered  upon  the  verdict. 

The  appellant  has  assigned  as  errors  the  overruling  of  his  said 
motions.  The  only  interrogatories  and  answers  specially  indi- 
cated by  the  appellant  as  inconsistent  with  the  general  verdict 
are  the  fourteenth  and  eighteenth,  as  follows : 

"14.  Was  the  place  where  the  plaintiff's  horses  and  wagon 
were  placed,  between  the  box  car  on  the  spur  track  and  the 
main  track,  a  safe  place  for  the  wagon  and  team,  taking  into 
consideration  the  distance  between  the  outside  of  the  wagon  and 
the  outside  of  passing  ears  and  trains?    Answer:  No." 

"18.  Was  there  not  a  strong  probability  that  a  team  stand- 
ing with  their  heads  toward  an  approaching  train,  and  with 
a  car  on  the  south  side  of  them,  and  the  main  track  along  which 
the  train  was  moving  toward  them  as  near  to  them  as  in  the 

court  is  not  required  to  reconcile  the  special  findings  that  they  may 
inconsistent  findings.  It  is  not  nee-  be  susceptible  of  an  interpretation 
essarily  fatal  to  the  general  verdict  which  would  overthrow  the  general 
that  the  special  findings  are  incon-  verdict.  Before  they  will  sustain  a 
sistent  with  one  another.  The  cjues-  judgment  they  must  be  so  incbn- 
tion  is,  Are  they,  when  considered  sistent  with  the  general  verdict  that 
as  a  whole,  so  inconsistent  with  the  they  will  not  bear  an  interpretation 
general  v^erdict  that  they  cannot  be  which  will  harmonize  with  the  gen- 
harmonized  with  it?  Nor  is  it  eral  verdict." 
enough  to  warrant  a  judgment  upon 


650  CONDUCT    OP   THE   TRIAL.  [ChAP.    IV. 

present  case,  would  become  frightened  and  unmanageable  ?    An- 
swer: Yes." 

In  reviewing  the  ruling  upon  the  motion  for  judgment  upon 
the  answers  to  interrogatories,  notwithstanding  the  general  ver- 
dict, we  can  not  look  to  the  evidence ;  and  in  order  that  the  an- 
swers may  control  and  override  the  verdict,  there  must  be  be- 
tween them  an  antagonism,  which  could  not  be  removed  by  any 
evidence  admissible  under  the  issue.  If  any  particular  answer 
be  thought  to  be  antagonistic  to  the  general  verdict,  but  may 
be  reconciled  therewith  by  the  aid  of  other  answers,  the  general 
verdict  will  not  be  overridden. 

Assuming  that  the  evidence  showed  the  collision  and  damage 
to  the  plaintiff,  the  issue  further  involved  the  question  whether 
the  appellant  was  negligent,  and,  if  so,  the  question  whether  the 
appellee  was  chargeable  wath  contributory  fault. 

From  the  fact  that  the  place  at  which  the  plaintiff's  horses 
and  wagon  was  placed,  with  reference  to  the  distance  therefrom 
to  passing  trains,  was,  as  the  event  showed,  not,  as  a  matter  of 
fact,  a  safe  place,  it  would  not  necessarily  follow  either  that  the 
appellant  was  not  negligent,  or  that  there  was  contributory  fault 
on  the  part  of  the  appellee.  Other  facts,  which  may  be  readily 
supposed,  might  be  shown  in  evidence,  which,  agreeably  with  this 
fact  or  conclusion,  would  plainly  prove  the  appellant's  negli- 
gence and  absence  of  fault  on  the  part  of  the  appellee. 

It  was  not  shown  by  any  of  the  answers  of  the  jury  that  the 
team  was  standing  with  the  heads  of  the  horses  toward  the  train, 
as  it  approached,  and  the  evidence  might  have  sho^vn  the  contrary. 
But  if  the  answers  had  shown  the  team  to  be  in  the  position  sup- 
posed by  the  eighteenth  interrogatory,  yet,  although,  as  shown 
by  another  answer,  the  collision  was  caused  by  the  fact  that  the 
horses  were  frightened  by  the  train,  it  would  not  follow,  because 
there  was  a  strong  probability  that  horses  so  situated  would  be- 
come frightened  and  unmanageable,  that  under  all  the  circum- 
stances not  disclosed  by  the  answers  of  the  jury,  but  which 
might  have  been  shown  in  evidence,  the  jury  would  not  be  au- 
thorized to  find,  as  they  did  by  their  general  verdict,  that  there 
was  negligence  on  the  part  of  the  appellant  and  absence  of  fault 
on  the  part  of  the  appellee. 

The  facts,  that  the  place  in  which  the  horses  and  wagon  stood 
was  not  a  safe  place  for  them,  and  that  there  was  a  strong  prob- 
ability, because  of  their  situation,  that  the  horses  would  be  fright- 


Sec.  8.]  Pennsylvania  co.  v.  smith.  651 

ened  by  an  approaching  train,  might,  with  other  supposable  cir- 
cumstances, strongly  indicate  fault  on  the  part  of  the  person  in 
control  of  the  team,  and  might  also  tend  to  exonerate  the  appel- 
lant from  a  charge  of  negligence,  but,  in  the  absence  of  knowl- 
edge of  other  controlling  circumstances,  these  facts  could  not 
lead  to  any  conclusion  upon  the  question  of  negligence.  *  *  * 
There  was  no  error  in  overruling  the  appellant's  motion  for 
judgment  on  the  answers  to  interrogatories,  notwithstanding  the 
general  verdict.     *     *     * 


CHAPTER  V. 
TRIALS  BY  THE  COURT. 

U.  S.  Compiled  Statutes,  1913. 

§1584.  [R.  S.  §  648.]  Trial  of  issues  op  fact  by  jury.  The 
trial  of  issues  of  fact  in  the  circuit  courts  shall  be  by  jury,  ex- 
cept in  eases  of  equity  and  of  admiralty  and  maritime  jurisdic- 
tion, and  except  as  otherwise  provided  in  proceedings  in  bank- 
ruptcy, and  by  the  next  section. 

§  1587.  [R.  S.  §  649.]  Trial  of  issues  of  fact  by  the  court. 
Issues  of  fact  in  civil  cases  in  any  circuit  court  may  be  tried  and 
determined  by  the  court,  without  the  intervention  of  a  jury, 
whenever  the  parties,  or  their  attorneys  of  record,  file  with  the 
clerk  a  stipulation  in  writing  waiving  a  jury.  The  finding  of 
the  court  upon  the  facts,  which  may  be  either  general  or  special, 
shall  have  the  same  effect  as  the  verdict  of  a  jury. 

Hurd's  Statutes  of  Illinois,  1913,  Chapter  110. 

[60.  Trial  by  court.]  §  60.  In  all  cases  in  any  court  of 
record  in  this  State,  if  both  parties  shall  agree,  both  matters  of 
law  and  fact  may  be  tried  by  the  court. 

[61.  Trial  by  court — Special  finding.]  §  61.  Upon  a 
trial  by  the  court  either  party  may,  within  such  time  as  the 
court  may  require,  submit  to  the  court  written  propositions  to 
be  held  as  law  in  the  decision  of  the  case,  upon  which  the  court 
shall  write  "refused"  or  "held,"  as  he  shall  be  of  opinion  is  the 
law,  or  modify  the  same,  to  which  either  party  may  except  as  to 
other  opinions  of  the  court.  In  any  case  so  tried  the  court  shall 
find  specially  upon  any  material  questions  or  questions  of  fact, 
which  shall  be  submitted  in  writing  by  either  party  before  the 
commencement  of  the  argument. 

Revised  Statutes  of  Missouri,  1909. 
§  1968.     Issues  of  fact  to  be  tried  by  jury,  "When.     An- 
issue  of  fact  in  an  action  for  the  recovery  of  money  only,  or 

652 


Sec.    1.]  KEARNEY   V.    CASE.  653 

of  specific  real  or  personal  property,  must  be  tried  by  a  jury, 
unless  a  jury  trial  be  waived  or  a  reference  ordered  as  herein- 
after provided.     (R.  S.  1899,  §  691.) 

§  1970.  Jury  trial.  When  deemed  waived.  Parties  to  an 
issue  of  fact  shall  be  deemed  to  have  waived  a  trial  by  jury  in 
the  following  cases :  First,  by  failing  to  appear  at  the  trial ;  sec- 
ond, by  written  consent,  in  person  or  by  attorney,  filed  with  the 
clerk;  third,  by  oral  consent  in  court,  entered  on  the  minutes. 
(R.  S.  1899,  §693.) 

§  1972.  Trial  of  question  of  fact  by  court — Duty  as  to 
findings.  Upon  the  trial  of  a  question  of  fact  by  the  court,  it 
shall  not  be  necessary  for  the  court  to  state  its  finding,  except 
generally,  unless  one  of  the  parties  thereto  request  it  with  the 
view  of  excepting  to  the  decision  of  the  court  upon  the  questions 
of  law  or  equity  arising  in  the  case,  in  which  case  the  court  shall 
state  in  writing  the  conclusions  of  fact  found  separately  from  the 
conclusions  of  law.     (R.  S.  1899,  §  695.) 

§  1987.  Instructions.  When  the  evidence  is  concluded,  and 
before  the  case  is  argued  or  submitted  to  the  jury  or  to  the 
court  sitting  as  a  jury,  either  party  may  move  the  court  to  give 
instructions  on  any  point  of  law  arising  in  the  cause,  which  shall 
be  in  writing  and  shall  be  given  or  refused.  The  court  may  of 
its  own  motion  give  like  instructions,  and  such  instructions  as 
shall  be  given  by  the  court  on  its  own  motion  or  the  motion  of 
counsel  shall  be  carried  by  the  jury  to  their  room  for  their 
guidance  to  a  correct  verdict  according  to  the  law  and  evidence; 
which  instructions  shall  be  returned  by  the  jury  into  court  at  the 
conclusion  of  the  deliberations  of  such  jury,  and  filed  by  the 
clerk  and  kept  as  a  part  of  the  record  in  such  case.  (R.  S.  1899, 
§748.) 


Section  1.    Waiver  of  the  Jury. 

KEARNEY  v.  CASE. 
12  Wallace,  275.     [1870.] 

Error  to  the  Circuit  Court  for  the  District  of  Louisiana ;  the 
case  bjing  this: 

The  act  of  Congress  of  March  3d,  1865,  after  presenting  in 
its  first  two  sections  the  manner  in  which  grand  and  petit  jurors 


654  TRIALS   BY   THE   COURT.  [ChAP,   V. 

are  to  be  selected  and  impaneled  in  criminal  cases,  proceeds  in 
its  fourth  thus  to  enact : 

"Issues  of  fact  in  civil  cases  in  any  Circuit  Court  of  the 
United  States  may  be  tried  and  determined  by  the  court  with- 
out the  intervention  of  a  jury,  whenever  the  parties  or  attorneys 
of  record  file  a  stipulation  in  writing  with  the  clerk  of  the  court 
waiving  a  jury."     *     *     * 

This  statute  being  in  force,  Case,  on  the  13th  of  September, 
1868,  as  receiver  of  the  First  National  Bank  of  New  Orleans, 
brought  suit  against  Kearney  on  two  promissory  notes  owned  by 
the  bank. 

Without  any  agreement  in  writing  filed  to  have  the  case  tried 
under  the  above-quoted  act  of  Congress,  or  any  agreement  in 
writing  at  all,  so  far  as  the  transcript  of  the  record  showed,  a 
trial  was  afterwards  had  by  the  court,  which  rendered  judgments 
against  the  defendant  on  the  12th  day  of  January,  1869. 

Though,  as  above  mentioned,  no  agreement  to  submit  in  Avrit- 
ing  appeared  or  was  inferable,  the  record  of  the  judgment  showed 
that  counsel  were  present  on  both  sides  when  the  trial  was  had. 
It  ran  thus: 

"December  7th,  1868.  This  cause  came  up  for  trial — J.  D. 
Rouse  and  Elmore  and  King,  for  plaintiff;  J.  G.  L.  Bright  and 
Bradford,  Lea,  and  Finney,  for  defendants — when,  after  hear- 
ing the  pleadings,  evidence,  and  argument,  the  court  considering 
the  same,  it  is  ordered,  adjudged,  and  decreed  that  Charles  Case 
do  recover,  &c.,  &c." 

A  writ  of  error  was  applied  for  and  obtained  by  the  defend- 
ant, on  the  28th  of  January,  1869,  and  filed  on  the  same  day; 
a  citation  being  issued  and  served  on  that  day.     *     *     * 

Mr,  Justice  Miller  delivered  the  opinion  of  the  court. 

No  question  arises  on  the  process  or  pleadings;  there  is  no 
bill  of  exceptions,  and  the  plaintiff  in  error  relies  on  what  pur- 
ports to  be  a  statement  of  facts  in  the  case  to  show  the  error 
of  which  he  complains.     *     *     * 

The  Judiciary  Act  of  1789,  §  12,  declares  that  the  trial  of  issues 
in  fact  in  the  Circuit  Courts  shall,  in  all  suits,  except  those  of 
equity  and  of  admiralty  and  maritime  jurisdiction,  be  by  jury. 
This  provision  and  that  found  in  the  seventh  amendment  of  the 
constitution,  adopted  after  the  Judiciary  Act,  namely,  "that  in 
suits  at  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,"  consti- 


Sec.    1.]  KEARNEY   V.    CASE.  655 

tuted  the  only  legislative  rule  for  the  Federal  courts,  except  in 
Louisiana,  until  the  act  of  1865.  Undoubtedly  both  the  Judi- 
ciary Act  and  the  amendment  to  the  constitution  secured  the  right 
to  either  party  in  a  suit  at  common  law  to  a  trial  by  jury,  and 
we  are  also  of  opinion  that  the  statute  of  1789  intended  to  point 
out  this  as  the  mode  of  trial  in  issues  of  fact  in  such  cases. 
Numerous  decisions,  however,  had  settled  that  this  right  to  a 
jury  trial  might  be  waived  by  the  parties,  and  that  the  judgment 
of  tlie  court  in  such  cases  should  be  valid.  Notwithstanding, 
however,  the  number  of  cases  in  which  the  waiver  of  this  right 
is  mentioned,  and  either  expressly  or  tacitly  held  to  be  no  objec- 
tion to  the  judgment,  it  is  remarkable  that  so  little  is  said  as  to 
the  mode  in  which  this  waiver  shall  be  made  to  appear.  In  most 
of  the  cases  it  is  somewhere  in  the  record  stated  affirmatively 
that  the  parties  did  waive  a  jury,  or  did  consent  to  the  trial  by 
the  court  without  a  jury.  In  the  case  of  Bank  of  Columbia  v. 
Okely  (4  Wheaton,  235),  the  court  held  that  there  was  an  im- 
plied waiver  of  this  right  when  the  defendant  made  his  note 
negotiable  at  the  Bank  of  Columbia,  there  being  in  the  charter 
of  that  bank  a  provision  authorizing  the  collection  of  such  debts 
by  a  summary  proceeding,  wdiich  did  not  admit  of  a  jury  trial. 
In  Hiriart  v.  Ballon  (9  Peters,  156),  where  a  summary  judg- 
ment was  rendered  against  a  surety  in  an  appeal  bond,  it  was 
held  that  the  defendant,  by  becoming  surety  in  a  court  whose 
rules  provided  for  such  summary  judgment,  had  waived  his  right 
to  a  trial  by  jury.  It  seems,  therefore,  that  both  by  express 
agreement  in  open  court,  and  by  implied  consent,  the  right  to  a 
jury  trial  could  be  waived.  But  as  was  shown  in  the  recent  case 
of  Flanders  -.  Tweed  (9  Wallace,  425),  this  court  had  held  that 
no  review  of  the  decision  of  the  court  below  could  be  had  of  any 
ruling  at  the  trial  where  the  parties  had  consented  to  accept  the 
court,  instead  of  a  jury  to  decide  issues  of  fact. 

In  this  state  of  the  law  the  act  of  1865  was  passed.  The  first 
two  sections  are  devoted  to  prescribing  the  manner  in  which 
grand  and  petit  juries  shall  be  selected  and  impaneled  in  crimi- 
nal trials.  The  fourth  section  enacts  that  issues  of  fact  in  civil 
cases,  in  any  Circuit  Court  of  the  United  States,  may  be  tried 
and  determined  by  the  court  without  the  intervention  of  a  jury, 
whenever  the  parties  or  their  attorneys  of  record  file  a  stipula- 
tion in  writing  with  the  clerk  of  the  court  waiving  a  jury.  It 
then  proceeds  to  prescribe  the  mode  of  finding  the  facts,  and 


656  TRIALS   BY   THE   COURT.  [ChAP.    V. 

the  effect  to  be  given  to  such  finding,  and  provides  for  a  review 
of  the  case  by  this  court.  The  manner  in  which  the  record  is  to 
be  prepared  for  this  and  the  extent  of  the  inquiry  in  this  court 
are  specifically  pointed  out. 

The  question  arises  on  this  statute  whether  this  mode  of  sub- 
mitting a  case  to  the  court  without  a  juiy  was  intended  to  be 
exclusive  of  all  other  modes,  so  that  if  there  is  no  stipulation  in 
writing  waiving  a  jury,  there  is  error,  for  which  the  judgment 
must  be  reversed.  Although  the  language  of  the  section  might 
admit  of  that  construction,  it  is  not  the  only  one  of  which  it 
is  susceptible.  As  stated  in  the  case  already  referred  to,  of 
Flanders  v.  Tweed,  the  main  purpose  of  the  act  undoubtedly 
was  to  enable  the  parties  who  were  willing  to  waive  a  jury  to 
have  the  case  reviewed  on  writ  of  error  when  tried  by  the  court 
alone.  This  Avas  rendered  necessary,  as  shown  by  Mr.  Justice 
Nelson  in  the  opinion  in  that  case,  by  the  former  decisions,  based 
on  the  idea  that  in  such  cases  the  court  did  not  sit  as  a  court 
of  law,  but  as  quasi  arbitrators.  To  remove  this  difficulty,  the 
statute  provided  a  mode  by  which  the  parties  who  agreed  to 
waive  a  jury  should  have  the  benefit  of  a  writ  of  error  to  the 
rulings  of  the  court  on  questions  of  laAv.  The  language  of  the 
section  is  that  the  stipulation  may  be  filed  with  the  clerk  of  the 
court,  which  is  undoubtedly  designed  to  enable  the  parties  to 
make  agreements  in  vacation ;  and  it  is  required  to  be  in  writing, 
to  prevent  either  party  demanding  a  jury  unexpectedly  at  the 
trial.  In  those  courts  where  juries  are  called  from  a  great  dis- 
tance and  detained  at  a  heavy  sacrifice,  the  courts  usually  give 
jury  trials  the  preference.  The  benefit,  therefore,  of  an  announce- 
ment by  which  the  number  of  these  trials  is  diminished,  and  the 
case  placed  in  an  attitude  to  be  taken  up  at  the  convenience  of 
the  court  and  the  parties  is  obvious.  We  cannot  believe  that 
Congress  intended  to  say  that  the  parties  shall  not,  as  hereto- 
fore, submit  their  cases  to  the  court  unless  they  do  so  by  a  writ- 
ten stipulation,  but  that  it  was  the  intention  to  enact  that  if 
parties  who  consent  to  waive  a  jury  desire  to  secure  the  right  to 
a  review  in  the  Supreme  Court  of  any  question  of  law  arising 
in  the  trial,  they  must  first  file  their  Avritten  stipulation,  and 
must  then  ask  the  court  to  make  a  finding  of  such  facts  as  they 
deem  essential  to  the  review,  and  ask  the  ruling  of  the  court  on 
points  to  which  they  wish  to  except.  If  this  is  not  done  the  par- 
ties consenting  to  waive  a  jury  stand  as  they  did  before  the 


Sec.    1.]  KEARNEY    V.    CASE.  657 

statute,  concluded  by  the  judgment  of  the  court  on  all  matters 
submitted  to  it.  This  we  understand  to  be  the  effect  of  the  opin- 
ion in  Flanders  v.  Tweed. 

But,  although  a  written  stipulation  in  the  Circuit  Court  is 
essential  to  a  review  in  this  court,  is  the  presence  of  the  agree- 
ment or  its  copy  in  the  transcript  sent  here  indispensable?  A 
copy  of  it  should  come  up,  as  observed  by  Mr.  Justice  Nelson, 
and  that  is  the  more  appropriate  evidence  of  compliance  with  the 
statute.  Still  we  are  not  prepared  to  say  that  if  it  shall  affirm- 
atively appear  in  any  other  part  of  the  record  proper,  that  such 
a  writing  was  made  by  the  parties,  that  it  will  not  be  sufficient 
here.  If,  for  instance,  it  is  stated  in  the  finding  of  facts  by  the 
court,  or  in  the  bill  of  exceptions,  or  in  the  record'  of  the  judg- 
ment entry,  that  such  a  stipulation  was  made  in  writing,  the 
record  would  show  that  the  condition  in  which  a  review  is  allowed 
existed,  and  we  would  not  feel  at  liberty  to  contradict  the  record 
in  this  respect.  In  a  case  where  there  is  no  evidence  that  it  was 
submitted  in  writing  under  the  statute,  but  the  record  shows 
affirmatively  that  the  parties  waived  a  jury,  we  hold  such  evi- 
dence of  waiver  to  be  sufficient  to  support  the  judgment,  but  not 
sufficient  to  authorize  a  review  of  the  rulings  of  the  court  at  the 
trial.  But  the  record  before  us  contains  no  statement  that  the 
parties  agreed  in  writing  to  submit  the  case  to  the  court,  nor 
any  express  statement  that  they  waived  a  jury  at  all.  The  lan- 
guage of  the  judgment  is  that 

"This  cause  came  up  for  trial;  J.  D.  Rouse  and  Elmer  and 
King  for  plaintiffs;  G.  L.  Bright  and  Bradford,  Lea,  and  Fin- 
ney, for  defendants ;  when,  after  hearing  the  pleadings,  evidence, 
and  argument,  the  court  considering  the  same,  it  is  ordered,  ad- 
judged, and  decreed,"  &c. 

Is  this  court  at  liberty  to  infer  from  the  entry  a  waiver  of 
the  right  to  a  jury  trial?  When  we  consider  the  cases  already 
cited,  in  which  such  a  waiver  has  been  implied,  and  that  the 
right  to  have  a  jury  when  a  party  demands  it  is  so  universally 
known  and  respected,  we  think  that  it  is  almost  a  necessary 
inference,  where  a  party  is  present  by  counsel  and  goes  to  trial 
before  the  court  without  objection  or  exception,  he  has  volun- 
tarily waived  his  right  to  a  jury,  and  must  be  held  in  this  court 
to  the  legal  consequences  of  such  a  waiver.  But  we  are  not  pre- 
pared to  go  further. 

If  the  state  of  the  pleadings  presents  issues  of  fact  to  be  tried. 

H.  T.  p.— 42 


658  TRIALS   BY   THE    COURT.  [ChAP.    V. 

and  there  is  nothing  to  show  that  the  party  complaining  of  the 
error  was  present  by  himself  or  counsel  at  the  trial,  and  no  jury 
was  called,  we  think  it  is  error  for  the  court  to  try  those  issues 
without  a  jury,  because  there  can  be  no  presumption  that  the 
party  has  waived  his  legal  and  constitutional  right  to  have  a  jury. 

The  record  before  us  presents,  in  the  light  of  these  views,  a 
case  where  the  parties  consented  to  waive  a  jury,  but  did  not  take 
the  steps  necessary  to  secure  the  right  to  a  review  of  the  findings 
of  the  court  as  provided  by  statute. 

There  is,  therefore,  no  error  of  which  we  can  take  cognizance, 
and  the  judgment  of  the  Circuit  Court  is 

Affirmed.'^ 


■ 


i 


DILLY  V.  OMAHA  &  ST.  L.  RY.  CO. 

55  Missouri  Appeals,  123.     [1893.] 

Ellison,  J.  This  action  was  instituted  under  the  provisions 
of  sections  2611  and  2612,  Revised  Statutes,  1889,  wherein  an 
action  is  given  for  damages  to  stock  which  may  go  upon  a  rail- 
road right  of  way  by  reason  of  there  not  being  a  sufficient  fence, 
and  are  injured  in  ways  other  than  by  colliding  with  the  train. 
Judgment  was  given  for  plaintiff,  both  in  the  justice 's  court  and 
the  Circuit  Court.    Defendant  has  brought  the  case  here.    *    *    * 

II.  The  next  point  of  objection  is  based  on  the  allowance  of  an 
attorney's  fee  of  $35,  under  the  provisions  of  section  2612,  Re- 
vised Statutes,  1889.  The  trial  court  allowed  the  fee,  without 
calling  a  jury,  and  without  any  waiver  of  a  jury  being  entered 
by  defendant  as  provided  in  section  2133.  No  objection  was 
made  to  this  by  defendant,  except  by  a  motion  in  arrest.  It 
was  decided  in  Briggs  v.  Railroad,  111  Mo.  168,  that  a  reasonable 
attorney's  fee,  as  allowed  by  the  statute  aforesaid,  was  an  issue 
of  fact  in  the  sense  of  the  statute,  section  2121,  and  that  the 
parties  were  entitled  to  a  jury,  unless  one  was  waived.  It  was 
furthermore  decided  in  that  case,  that  there  could  be  no  waiver, 
when  the  parties  appeared,  except  by  written  consent  filed  with 
the  clerk,  or  oral  consent  in  court,  entered  on  the  minutes;  and 

1  The  sufficiency  of  the  pleadings 
is  open  to  review  as  in  other  cases. 
Bond  V.  Dustin,  112  U.  S.  604. 


Sec.  1.]  ^  PHILLIPS  V.  hood.  659 

that  advantage  could  be  taken  of  this  by  motion  in  arrest.  No 
waiver,  as  contemplated  by  that  decision,  was  made  in  this  case, 
and  we  must  hold  under  authority  that  error  was  committed 
against  defendant.  Plaintiff's  counsel  make  a  strong  argument, 
with  citation  of  authority,  against  this  view,  but  we  are  bound, 
under  the  Constitution,  to  give  the  defendant  the  benefit  of  the 
last  ruling  of  the  Supreme  Court. 

The  result  is  that  we  will  affirm  the  judgment  as  to  all  things 
save  that  for  the  attorney's  fee.  As  to  the  latter  we  will  reverse 
the  judgment  and  remand  the  cause  for  trial  as  to  such  fee. 


PHILLIPS  V.  HOOD. 

85  Illinois,   450.      [1877.] 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court : 

The  plaintiff  in  this  suit  recovered  a  judgment  in  the  county 
court  of  Jefferson  county,  from  which  an  appeal  was  taken  by 
the  defendant  to  the  Circuit  Court  of  the  county,  where  the  judg- 
ment was  affirmed,  and  the  defendant  took  the  present  appeal  to 
this  court.     *     *     * 

It  is  next  objected  that,  in  the  county  court,  the  cause  was 
tried  by  the  judge  of  that  court  without  a  jury,  and  that  the 
record  does  not  show  that  appellant  waived  his  right  to  a  jury, 
as  it  should  have  done,  there  being  an  issue  of  fact,  according  to 
Archer  v.  Spillman,  1  Scam.  553.  The  record  shows  the  appear- 
ance of  both  the  parties  at  the  time,  and  in  Burgwin  v.  Babcock, 
11  111.  28,  it  was  held,  that  in  the  case  of  such  a  trial,  where  the 
parties  are  present,  and  interpose  no  objections,  they  waive  their 
right  to  have  the  cause  submitted  to  a  jury,  and  acquiesce  in  the 
trial  by  the  court. 

It  is  further  insisted  that  the  verdict  is  not  sustained  by  the 
evidence.  There  is  some  conflict  in  the  testimony,  but  we  regard 
it  as  fully  warranting  the  verdict. 

Judgment  affirmed. 


660  TRIALS   BY   THE   COURT.  [ChAP.   V. 

WHEELOCK  V.  LEE. 

74  New  York,  495.     [1878.] 

Eapallo,  j.    *    *    * 

The  appellant  takes  the  further  point  that  he  was  entitled  to 
a  trial  by  jury.  The  first  four  causes  of  action  specified  in  the 
complaint  are  clearly  triable  by  jury.  They  are  for  the  recovery 
of  money  only,  and  maintainable  at  common  law.  (Palen  v. 
Johnson,  50  N.  Y.  49;  AVheelock  v.  Lee,  64  id.  246.)  The  fifth 
cause  of  action  only  is  for  equitable  relief,  viz. :  the  surrender  of 
the  securities  given  for  the  usurious  loans.  The  joinder  of  an 
equitable  cause  of  action  with  others  purely  legal  does  not  de- 
prive the  defendant  of  the  right  of  trial  by  jury.  (Bradley  v. 
Aldrich,  40  N.  Y.  511.)  When  such  an  action  is  brought  to  trial^ 
at  special  term  and  the  defendant  demands  a  jury  trial,  the 
judge  must  determine  whether  any  of  the  grounds  upon  which  a 
recovery  is  sought  are  such  as  at  the  adoption  of  the  Constitution 
were  redressed  by  an  action  at  law,  and  if  so  should  direct  the 
cause  to  be  tried  by  a  jury  at  the  circuit,  or  at  all  events  should 
refuse  to  try  the  cause  without  a  jury.  (Davis  v.  Morris,  36  N. 
Y.  569,  572 ;  Hudson  v.  Caryl,  44  id.  553.)  Where  the  complaint  is 
framed  solely  for  equitable  relief,  and  the  action  is  tried  as  an 
action  in  equity,  the  court,  on  finding  that  the  plaintiff  is  not 
entitled  to  any  equitable  relief,  but  that  the  facts  would  war- 
rant an  action  for  damages  which  he  has  not  alleged  or  claimed, 
cannot  order  judgment  for  such  damages.  (Bradley  v.  Aldrich, 
40  N.  Y.  504.)  An  opportunity  must  have  been  afforded  to  the 
defendant  to  claim  a  jury  trial  on  that  ground  of  action. 

The  respondent  claims  that  the  appellant  waived  his  right  to 
a  jury  trial  by  consenting  that  the  case  be  placed  on  the  calendar 
for  trial  at  the  special  term,  and  by  noticing  the  case  for  trial  at 
that  term.  We  do  not  think  these  acts  amounted  to  a  waiver,— 
there  was  no  consent  that  the  action  be  tried  without  a  jury  and 
at  the  first  opportunity  the  defendant  demanded  a  jury  trial. 
The  case  in  one  of  its  aspects  was  triable  at  special  term,  and 
had  the  plaintiff  elected  to  rely  solely  on  his  equitable  cause  of 
action  he  could  have  proceeded  with  the  trial  there.  In  the  cases 
cited  above,  this  court  gives  a  strong  intimation  that  a  trial  by 
jury  can  be  waived  only  in  the  manner  prescribed  by  the  Code, 
or  by  entirely  failing  to  object,  but  it  is  not  necessary  to  decide 


Sec.    1.]  BURNHAM   V.    NORTH    CHICAGO   RY.    CO.  661 

that  point  now.  It  is  sufficient  to  hold  that  at  all  events  there 
must  be  some  unequivocal  act  or  consent  showing  an  intention  to 
abandon  the  constitutional  right,  and  no  such  intention  is  ap- 
parent here. 

Being  of  opinion  that  on  both  of  the  grounds  stated  the  judg- 
ment must  be  reversed  it  is  not  necessary  to  consider  the  other 
points  in  the  case. 

Judgment  reversed,  with  costs. 


BURNHAM  V.  NORTH  CHICAGO  RY.  CO. 

88  Federal  Rep.  627.     [C.  C.  A.  1898.] 

BuNN,  District  Judge.  This  suit  has  been  twice  tried  in  the 
court  below,  and  is  now  in  this  court  for  the  second  time.  It  was 
brought  to  recover  the  price  of  a  street-car  traction  motor  con- 
structed by  the  plaintiffs  for  the  defendant.  Upon  the  first  trial 
a  jury  was  waived,  and  the  case  submitted  to  the  court  upon  the 
following  written  stipulation  as  to  the  facts,  without  other  evi- 
dence : 

"It  is  hereby  stipulated  by  and  between  the  parties  to  the 
above-entitled  cause,  through  their  respective  counsel,  that  jury 
shall  be,  and  is  hereby,  waived,  and  the  said  cause  submitted  to 
the  court  for  trial  upon  the  foregoing  statement  of  facts.  For 
the  purpose  of  said  trial,  the  said  statement  shall  be  considered 
by  the  court  to  be  in  evidence,  and  as  absolutely  true. "     *     *     * 

On  the  second  trial  the  plaintiffs  asked  for  a  jury  trial,  and 
also  that  they  be  allowed  to  introduce  evidence  in  addition  to, 
but  not  contradicting,  the  written  statement, — both  of  which  re- 
quests were  denied  by  the  court, — to  which  rulings  exceptions 
were  taken,  and  the  trial  had  before  the  court  upon  the  same 
stipulation  of  facts,  and  a  finding  and  judgment  rendered  again 
against  the  plaintiffs. 

"We  are  of  opinion  that  the  court  erred  in  each  of  these  rulings. 

2.  The  stipulation  to  waive  a  jury,  and  to  try  the  case  before 
the  court,  only  had  relation  to  the  first  trial.  There  could  be 
no  presumption  then  that  there  would  ever  be  a  second  trial; 
and  therefore  it  should  not  be  presumed  that  the  parties,  in 


662  ■  TRIALS   BY   THE    COURT.  [ChAP.    V. 

making  the  stipulation,  had  in  mind  any  possible  subsequent 
trial  after  the  first,  to  which  the  stipulation  could  refer.  The 
right  of  trial  by  jury  in  cases  at  law,  whether  in  a  civil  or  crim- 
inal case,  is  a  high  and  sacred  constitutional  right  in  Anglo- 
Saxon  jurisprudence,  and  is  expressly  guaranteed  by  the  United 
States  Constitution.  A  stipulation  for  the  waiver  of  such  right 
should  therefore  be  strictly  construed  in  favor  of  the  preservation 
of  the  right.  Cross  v.  State,  78  Ala.  430 ;  State  v.  Fouchet,  33  La. 
Ann.  1154 ;  Dean  v.  Sweeney,  51  Tex.  242 ;  Brown  v.  Chenoworth, 
Id.  469 ;  Town  of  Carthage  v.  Buckner,  8  111.  App.  152.  This  last 
cited  case  was  very  similar  to  the  one  at  bar,  and  the  court  says : 

"It  appears  that  on  the  first  trial  the  parties  entered  into  a 
written  stipulation  of  facts  agreed  upon,  as  proven  on  the  trial, 
and  also  that  a  jury  should  be  waived,  and  the  case  submitted  to 
the  court  for  trial.  On  the  second  trial,  appellant  claimed  that 
under  such  stipulation  a  jury  should  again  be  waived,  and  the 
case  be  tried  by  the  court,  and  entered  a  motion  to  that  effect. 
The  action  of  the  court  in  overruling  this  motion  is  one  of  the 
errors  assigned.  In  this  we  think  no  error  was  committed.  The 
agreement  to  waive  a  jury  only  bound  the  parties  to  the  mode 
adopted — of  trial  by  the  court — to  that  one  trial.  When  the 
case  was  remanded  by  this  court  for  another  trial  in  the  court 
below,  both  parties  were  restored  to  their  original  right  of  trial 
by  jury.  Each  party  is  entitled  to  as  many  juries  as  there  are 
trials,  and  a  waiver  of  a  jury  on  one  trial  is  expended  by  that 
trial."    Brown  v.  State,  89  Ga.  340,  15  S.  E.  462. 

The  rule  and  the  reason  for  it  are  fairly  laid  down  by  the 
Supreme  Court  of  Alabama  in  Cross  v.  State,  78  Ala.  430,  as 
follows : 

"We  need  not  decide  whether  the  defendant,  under  the  facts 
of  this  case,  so  far  waived  his  right  of  trial  by  jury  as  to  justify 
the  judge  of  the  County  Court  in  proceeding  to  try  the  cause. 
*  *  *  Conceding  that  such  was  the  case,  all  we  decide  is 
that  the  agreement  to  waive  the  right  of  trial  by  jury  must  ordi- 
narily be  construed  to  apply  only  to  the  particular  trial  at  which 
it  is  made.  Such  a  waiver  is  a  renunciation  of  a  valuable  con- 
stitutional right,  and  must  be  strictly  construed.  It  may  well 
be  supposed  that  a  defendant  would  be  perfectly  willing  for  a 
particular  judge  to  try  him,  when  he  would  not  risk  his  suc- 
cessor, or  that  he  would  be  willing  to  be  tried  the  first  time  by  a 
judge,  when  he  would  not  submit  to  a  second  trial  by  the  same 


Sec.  2.]  insurance  co.  v.  polsom.  663 

judge  after  such  officer  had  convicted  him  one  or  more  times, 
so  that  the  judicial  mind  might  not  afterwards  be  perfectly  free 
from  the  influence  of  a  bias  created  by  the  circumstances  of  such 
previous  conviction.  This  would  be  sufficient  ground  for  the 
challenge  of  a  juror,  and  ought  not  to  be  considered  as  waived 
in  the  case  of  a  judge, — at  least  on  doubtful  implication."  Mar- 
ton  V.  King,  72  Ala.  354;  Stedman's  Heirs  v.  Stedman's  Ex'rs., 
32  Ala.  525 ;  Benbow  v.  Robbins,  72  N.  C.  422. 

Nor  is  this  court  ready  to  concede  that  the  waiver  of  the  right 
of  jury  trial  is  absolutely  binding  upon  the  party,  even  as  to  the 
one  trial  where  it  is  intended  to  be  applied.  A  stipulation  to 
waive,  followed  by  an  order  of  the  court,  is  not  in  the  nature  of 
a  private  contract  founded  upon  a  consideration,  which  can 
only  be  set  aside  for  fraud.  It  is  a  proceeding  in  court,  which  is 
liable  to  be  changed  or  modified  or  set  aside  by  order  of  the 
court,  in  its  discretion,  upon  a  proper  showing.  And  where  the 
circumstances  are  changed,  as  in  the  case  of  a  change  in  judges, 
or  other  conditions,  such  a  discretion  to  relieve  from  a  waiver 
might  very  properly  be  exercised  even  on  the  first  trial.  ^  A 
change  in  the  court  or  in  the  counsel  might  very  well  furnish 
a  good  reason  for  allowing  the  waiver  to  be  withdrawn;  and 
where,  upon  a  proper  application,  the  circumstances  seem  to 
justify  it,  we  think  that  a  liberal  discretion  should  be  exercised 
by  the  trial  court  in  allowing  either  party  to  withdraw  from  such 
a  waiver,  and  to  claim  his  right  under  the  Constitution.  The 
judgment  of  the  Circuit  Court  is  reversed,  with  instructions  to 
grant  a  new  trial. 


Section  2.    Propositions  of  Law^. 

INSURANCE  COMPANY  v.  FOLSOM. 

18  Wallace,  237.     [1873.] 

Plaintiff  brought  assumpsit  on  a  policy  of  marine  insurance; 
defendant  pleaded  the  general  issue.     A  jury  was  waived  by 

1  The   court  has   discretion   to  re-       a  jury.     Wittenberg  v.  Onsgard,  78 
lieve   against  a   stipulation   waiving       Minn.  342. 


664  TRIALS   BY    THE    COURT.  [ChAP.    V. 

proper  stipulation,  and  the  ease  was  submitted  to  the  court 
which  made  a  general  finding  for  the  plaintiff.^ 

]\Ir.  Justice  Clifford.     *     *     * 

Having  introduced  the  policy,  the  plaintiff  proved  by  the  mas- 
ter that  the  schooner,  on  the  sixth  of  January  prior  to  the  date 
of  the  policy,  departed  on  her  voyage,  and  that  she  was  lost  at 
the  time  and  by  the  means  before  stated.  In  addition  to  the 
incidents  of  the  loss,  he  also  proved  the  circumstances  under 
which  the  master  and  crew  were  saved  from  the  wreck  and  car- 
ried to  the  port  of  Bremerhaven,  by  the  vessel  which  rescued 
them ;  that  the  master  wrote  to  the  owner  by  the  first  mail  from 
that  place  after  their  arrival  there,  and  that  he  was  unable  to 
use  the  telegraph,  as  he  had  no  funds  to  prepay  a  telegi'am.  Due 
notice  of  the  loss  and  of  the  interest  of  the  plaintiff  having  been 
admitted  the  plaintiff  rested,  and  the  defendants  moved  the 
court  to  decide  that  the  evidence  was  not  sufficient  to  entitle  the 
plaintiff  to  a  verdict,  which  the  court  refused  to  do. 

Suppose  the  motion  is  regarded  as  a  motion  for  a  nonsuit,  it 
was  clearly  one  which  could  not  be  granted,  as  it  is  well-settled 
law  that  the  Circuit  Court  does  not  possess  the  power  to  order  a 
peremptory  nonsuit  against  the  will  of  the  plaintiff.  Power  to 
grant  a  peremptory  nonsuit  is  not  vested  in  a  Circuit  Court,  but 
the  defendant  may,  if  he  sees  fit,  at  the  close  of  the  plaintiff's 
case,  move  the  court  to  instruct  the  jury  that  the  evidence  intro- 
duced by  the  plaintiff  is  not  sufficient  to  warrant  the  .jury  in 
finding  a  verdict  in  his  favor,  and  it  is  held  that  such  a  motion 
is  not  one  addressed  to  the  discretion  of  the  court,  but  that  it  pre- 
sents a  question  of  law,  and  that  it  is  as  much  the  subject  of  excep- 
tions as  any  other  ruling  of  the  court  in  the  course  of  the  trial.  All 
things  considered  the  court  is  inclined,  not  without  some  hesita- 
tion, to  regard  the  motion  as  one  of  the  latter  character,  and  in 
that  view  it  presents  the  question  whether  by  the  terms  of  the 
policy,  the  risk  was  within  it,  as  the  proofs  show  that  the  loss 
occurred  before  the  policy  was  issued.     *     *     * 

Viewed  in  the  light  of  these  suggestions,  it  is  quite  clear  that  it 
would  have  been  error  if  the  Circuit  Court  had  decided  as 
requested  by  the  defendants,  and  that  the  decision  made  by  the 
Circuit  Court  in  denying  the  motion  was  correct.     *     *     * 

Special  findings  of  fact  were  requested  by  the  defendants,  and 
they  excepted  in  numerous  instances  to  the  rulings  of  the  court 

1  Statement  has  been  condensed. 


Sec.  2.]  insurance  co.  v.  folsom.  665 

refusing  to  comply  with  such  requests,  all  of  which  are  overruled 
upon  the  ground  that  the  finding  of  the  Circuit  Court  upon  the 
facts  may  be  either  general  or  special,  as  heretofore  more  fully 
explained.    Requests  that  the  court  would  adopt  certain  conclu- 
sions of  law  were  also  presented  by  the  defendants,  in  the  nature 
of  prayers  for  instruction,  as  in  cases  where  the  issues  of  fact 
are  tried  by  a  jury,  which  were  refused  by  the  Circuit  Court, 
and  the  defendants  also  excepted  to  such  refusals.    None  of  these 
exceptions  have  respect  to  the  rulings  of  the  court  in  admitting 
or  rejecting  evidence,  nor  to  any  other  ruling  of  the  Circuit  Court 
which  can  properly  be  denominated  a  ruling  in  the  progress  of 
the  trial,  as  every  one  of  the  refusals  excepted  to  appertain  to 
some  request  made  to  affect  or  control  the  final  conclusion  of 
the  court  as  to  the  plaintiff 's  right  to  recover.    Such  requests  or 
prayers  for  instruction,  in  the  opinion  of  the  court,  are  not  the 
proper  subjects  of  exception  in  cases  where  a  jury  is  waived  and 
the  issues  of  fact  are  submitted  to  the  determination  of  the  court. 
Exceptions  are  allowed  to  the  rulings  of  the  court  in  the  progress 
of  the  trial,  and  the  provision  is  that  the  review,  if  the  finding 
is  special,  may  also  extend  to  the  determination  of  the  sufficiency 
of  the  facts  found  to  support  the  judgment.    Where  the  finding 
is  general,  as  in  this  case,  nothing  is  open  to  review  but  the  rul- 
ings of  the  court  in  the  progress  of  the  trial,  and  as  none  of  the 
last-named  exceptions,  which  are  the  ones  now  under  considera- 
tion, were  of  that  class,  they  are  all  overruled.     Like  a  special 
verdict,  a  special  finding  furnishes  the  means  of  reviewing  such 
questions  of  law  arising  in  the  case  as  respect  the  sufficiency  of 
the  facts  found  to  support  the  judgment,  but  where  the  finding 
is  general  the  losing  party  cannot  claim  the  right  to  review  any 
(luestions  of  law  arising  in  the  case,  except  such  as  grow  out  of 
the  rulings  of  the  Circuit  Court  in  the  progress  of  the  trial, 
which  do  not  in  any  proper  sense  include  the  general  finding  of 
the  Circuit  Court  nor  the  conclusions  of  the  Circuit  Court  em- 
bodied in  such  general  finding,  as  such  findings  are  in  the  nature 
of  a  general  verdict  and  constitute  the  foundation  of  the  judg- 
ment.    No  review  of  such  a  finding  can  be  made  here  under  a 
writ  of  error,  unless  it  is  accompanied  by  an  authorized  special 
statement  of  the  facts,  without  imposing  upon  this  court  the  duty 
of  hearing  the  whole  case,  law  and  fact,  as  on  an  appeal  in  a 
chancery  or  in  an  admiralty  suit,  which  would  operate  as  a  repeal 
of  the  provisions  in  the  act  of  congress,  that  issues  of  fact  in 


666 


TRIALS    BY    THE    COURT. 


[Chap.  V. 


such  cases  may  be  tried  and  determined  by  the  Circuit  Court, 
and  would  also  violate  that  clause  of  the  twenty-second  section 
of  the  Judiciary  Act,  which  prohibits  this  court  from  reversing 
any  case  "for  any  error  of  fact." 

Whether  any  ruling  of  the  Circuit  Court  other  than  the  rulings 
in  admitting  or  rejecting  evidence  can  properly  be  regarded  "as 
rulings  in  the  progress  of  the  trial, ' '  within  the  meaning  of  that 
phrase  in  the  act  of  congress,  it  is  not  necessary  in  this  case  to 
decide,  as  it  is  clear  that  neither  the  general  finding  of  the  Circuit 
Court  nor  the  conclusions  of  the  Circuit  Court  as  embodied  in 
the  general  finding  fall  within  that  category .2 

Judgment  affirmed. 


I 


HUBBARD  V.  FUCHS. 


164  Missouri,  426.     [1901. 


Burgess,  j.     *     *     * 

This  an  action  at  law,  in  which  the  evidence  was  conflicting,! 
and  no  finding  of  facts  was  made  by  the  court,  nor  were  any 
declarations  of  law  asked,  or  given.     It  is  impossible,  therefore, 


2  Compare  St.  Louis  v.  Telegraph 
Co.,  166  U.  S.  388.  See  comments 
on  these  cases  in  Streeter  v.  Sani- 
tary Dist,  133  Fed.  (C.  C.  A.)  124. 

MuNGER,  J.,  in  Seep  v.  Mining 
Co.,  201  Fed.  893: 

"These  statements  of  the  mode 
in  which  the  judgment  of  the  court, 
in  an  action  at  law  when  a  jury  has 
been  waived,  may  be  reviewed,  seem 
plain  and  specific.  All  that  it  is 
necessary  for  counsel  to  do  in  the 
trial  of  an  action  at  law  to  the  court, 
when  a  jury  is  waived,  is  to  bear 
in  mind  that  the  judge  trying  the 
case  is  acting  in  a  dual  capacity: 
First,  as  a  trier  of  questions  of  law, 
the  same  as  if  the  case  were  being 
tried  to  a  jury;  second,  as  a  trier 
of  facts,  in  the  place  of  a  jury.  If 
the  case  was  tried  to  a  jury,  to  en- 
able   the    appellate    court    to    pass 


upon  the  question  as  to  whether  or 
not  there  is  substantial  evidence  to 
sustain  a  finding  in  favor  of  a 
party,  it  is  necessary  to  request  the 
court  to  direct  a  finding.  Upon  the 
court's  refusal,  and  an  exception 
being  taken,  that  question  may  be 
reviewed.  So,  too,  when  a  case  is 
tried  to  a  court  without  a  jury. 

1 1  if  *  ♦  gQ^  when  a  case  is 
tried  to  the  court,  requests  should 
be  made  to  the  court  to  find  and  an- 
nounce the  propositions  of  law 
which  it  is  claimed  are  applicable 
to  the  facts  in  the  ease.  If  the 
court  refuses  to  so  find,  and  an  ex- 
ception is  taken,  the  questions  may 
be  reviewed  in  the  appellate  court; 
or,  if  the  court  makes  findings  of 
law,  and  they  are  duly  excepted  to, 
they  may  be  reviewed. ' ' 


Sec.  2.]         first  nat,  bank  v.  n.  w.  nat.  bank.  667 

for  us  to  determine  upon  what  theory  of  the  ease  it  was  de- 
cided, or  whether  correctly  or  otherwise,  but  the  presumption 
must  be  indulged  in  favor  of  its  correctness.  As  was  said  in  the 
case  of  Sells  v.  Bretelle,  162  I\Io.  373,  and  Blankenship  v.  Dilley, 
162  Mo.  338 :  "If  plaintiffs  had  desired  to  take  the  opinion  of 
the  trial  court  upon  the  questions  which  they  now  present  upon 
this  appeal,  they  should  have  asked  declarations  of  law  in  accord- 
ance therewith,"  but  having  failed  to  do  so  they  can  not  treat 
the  case  here  just  as  if  the  questions  which  they  now  discuss  had 
been  raised  by  declarations  of  law  either  given  or  refused. ^ 

Now,  if  there  was  no  evidence  to  justify  the  judgment,  this 
court  would  interfere  although  no  declarations  of  law  were  asked 
(Hartt  V.  Leavenworth,  11  Mo.  629;  Robbins  v.  Phillips,  68  Mo. 
100 ;  Pipkin  v.  Allen,  24  Mo.  520 ;  Heyneman  v.  Garneau,  33  Mo. 
565;  Morris  v.  Barnes,  35  Mo.  412;  Wilson  v.  Albert,  89  Mo. 
537;  State  ex  rel.  v.  Guinotte,  156  Mo.  513),  but  such  is  not  the 
case.  So  it  has  been  held  by  this  court  that  it  will  review  the 
action  where  exceptions  are  saved  on  points  of  law  other  than 
.the  giving  or  refusing  of  instructions  (Wilson  v.  Albert,  supra, 
and  authorities  cited ) ,  but  no  such  question  is  presented  by  plain- 
tiffs'  brief. 

For  reasons  indicated  we  affirm  the  judgment. 


FIRST  NAT'L  BANK  v.  N.  W.  NAT'L  BANK. 

153  Illinois,  296.     [1894.] 

Mr.  Justice  Baker  delivered  the  opinion  of  the  court : 
In  this  action  of  assumpsit  brought  by  the  Northwestern  Na- 
tional Bank  of  Chicago,  against  the  First  National  Bank  of  Chi- 
cago, the  issues  were  tried  before  the  Superior  Court  of  Cook 
county  without  a  jury,  and  the  court  found  the  issues  for  the 
plaintiff,  and  assessed  its  damages  at  $2454,  and  rendered  judg- 
ment therefor  against  the  defendant.  Upon  an  appeal  to  the 
Appellate  Court  for  the  First  District  the  judgment  was  in  all 
things  affirmed,  and  thereupon  the  First  National  Bank  of  Chi- 
cago prosecuted  this  further  appeal. 

A  preliminary  question  is  raised  by  the  appellee.     It  insists 

1  Accord,  Crean  v.  Hourigan,  158 
111.  301. 


668  TRIALS   BY   THE   COUET.  [ChAP.    V. 

that  all  questions  of  fact  are  conclusively  settled  in  its  favor  by 
the  judgment  of  affirmance  in  the  Appellate  Court,  and  further, 
that  no  questions  of  law  are  so  preserved  in  the  record  as  that  ' 
they  can  be  reviewed  in  this  forum. 

At  the  trial,  appellant  submitted  to  the  court  eight  "written 
propositions,"  which  it  prayed  should  "be  held  as  law  in  the 
decision  of  the  case."  (Sec.  41  of  Practice  act,  2  Starr  &  Curtis' 
Ann.  Stat.  1808.)  The  court  "held"  propositions  1,  2  and  3,  but 
"refused"  to  hold  propositions  4,  5,  6,  7  and  8  to  be  law  applica- 
ble in  the  decision  of  the  case,  and  to  the  action  of  the  court  in 
refusing  to  hold  said  five  last  mentioned  propositions,  and  each 
of  them,  appellant  then  and  there  excepted. 

In  respect  to  propositions  4,  5,  6  and  7,  it  may  well  be  said  that 
they  are  not  propositions  of  law,  wdthin  the  intent  and  meaning 
of  Section  41  of  the  Practice  act.  They  are,  both  in  form  and  in 
substance,  mere  prayers  or  solicitations  of  appellant  to  the  trial 
court  to  find  particular  facts  for  it,  ' '  under  the  law  and  the  evi- 
dence." The  statute  does  not  contemplate  that  under  the  cloak 
of  written  propositions  of  law  a  party  litigant  shall  have  the 
right  to  call  upon  the  court  to  find  in  his  or  its  favor,  seriatim, 
all  the  special  or  particular  facts  involved  in  the  evidence ;  and, , 
delwrs  the  statute,  it  is  not  a  common  law  function  of  a  judge, 
in  a  common  law  action,  to  make  special  findings  of  fact.  The 
rule  is,  ad  quaestionem  facti  non  respondent  judices.  Broom's 
Legal  Maxims  (4th  ed.),  103;  Altham's  case,  Coke,  part  8,  155a. 
In  Memory  v.  Niepert,  131  111.  623,  the  case  was  tried  by  the 
court  below  without  a  jury,  and  this  court  held  that  a  proposi- 
tion there  asked  was  properly  refused,  and  for  the  reason  that  no 
question  of  law  was  thereby  raised.  And  so  in  the  case  at  bar,  the 
trial  court  could  not  properly  have  done  otherwise  than  refuse  to 
hold  the  propositions  4,  5,  6  and  7. 

The  trial  court  also  declined  to  hold  proposition  8  tendered  by 
appellant,  and  marked  the  same  "refused."  That  proposition 
read  as  follows :  ' '  The  court  holds,  as  a  matter  of  law,  that  under 
the  law  and  evidence  the  judgment  in  this  case  should  be  for  de- 
fendant."  There  can  be  no  question  but  that  if  the  case  had  been 
on  trial  before  a  jury,  and  appellant  had  moved  the  court  to  in- 
struct the  jury  that  under  the  law  and  evidence,  and  as  matter 
of  law,  the  verdict  and  judgment  in  the  case  should  be  for  the 
defendant,  then  such  motion  would  have  been  regarded  as  a  mo- 
tion in  the  nature  of  a  demurrer  to  the  evidence,  and  as  raising 


Sec.  2.]         first  nat.  bank  v.  n.  w.  nat.  bank.  660 

a  question  of  law  for  the  decision  of  the  court.  In  Bartelott  v.  In- 
ternational Bank,  119  III.  259,  it  was  held  that  motions  to  exclude 
the  entire  evidence  from  the  jury,  and  motions  to  instruct  the 
jury  to  find  for  the  defendant,  are  in  the  nature  of  demurrers 
to  evidence,  and  that  they  admit  not  only  all  that  the  testimony 
of  the  plaintiff  proves,  but  also  all  that  it  tends  to  prove.  And 
it  was  also  there  held,  that  a  motion  to  exclude  the  evidence,  or  to 
instruct  the  jury  that  they  should  find  for  the  defendant,  may  be 
made  after  the  evidence  is  heard  on  behalf  of  the  defendant.  To 
like  effect  is  the  case  of  Joliet,  Aurora  and  Northern  Railway  Co. 
V.  Velie,  140  111.  59.  In  cases  where  the  parties  litigant  agree  that 
both  matters  of  law  and  matters  of  fact  may  be  tried  by  the  court 
without  a  jury,  and  the  only  question  at  issue  is  the  question  of 
law  whether  the  uncontroverted  facts  constitute  a  cause  of  action, 
no  good  reason  is  perceived  why  the  defendant  may  not  submit 
to  the  court  such  a  proposition  as  proposition  8  now  before  us, 
to  be  "held"  or  "refused"  by  the  court,  as  the  court  shall  be  of 
opinion  the  law  of  the  case  is,  and  why  the  submission  of  such  a 
proposition  should  not  be  regarded  as  in  the  nature  of  a  de- 
murrer to  evidence,  and  as  sufficiently  raising  and  preserving 
the  question  of  law  involved  for  re-examination  in  a  court  of 
review. 

The  exact  question  now  before  us  does  not  seem  ever  to  have 
been  passed  upon  by  this  court.  But  the  case  of  Pittsburg, 
Ft.  Wayne  and  Chicago  Railroad  Co.  v.  Reich,  101  111.  157,  was 
tried  by  the  court  without  the  intervention  of  a  jury,  and  upon 
the  appeal  of  this  court,  in  discussing  the  several  propositions  of 
law  that  were  refused  at  the  trial,  used  this  language  in  regard 
to  one  of  them  :  ' '  The  fourteenth  proposition  was  properly  re- 
fused, because  there  was  evidence  tending  to  sustain  a  cause  of 
action.  It  asserts,  simply,  that  under  the  evidence  there  can  be 
no  recovery.  There  was  evidence  tending  to  authorize  a  recov- 
ery. Its  weight  was  for  the  court. "  The  plain  implication  from 
this  language  is,  that  the  propriety  of  holding  or  refusing  a  writ- 
ten proposition  such  as  that  now  before  us,  will  depend  upon  the 
answer  given  to  the  question  whether  or  not  there  is  evidence  in 
the  record  which  fairly  tends  to  establish  a  cause  of  action. ^ 

1  Macfarlane,  J.,  in  Butler  Co.  v.  "A  jury  was  waived  and  the  is- 

Boatmen  's  Bank,  143  Mo.  13 :  sues  of  fact  were  submitted  to  the 

"From    a    judgment   for    defend-  judge,    who    in    that    respect    per- 

ant  plaintiff  appealed.  formed    the    duties   of    a   jury.      In 


670 


TRIALS   BY   THE    COUET. 


[Chap.  V. 


The  conclusion  to  be  deduced  from  that  which  we  have  said  is, 
that  we  consider  this  case  properly  before  use  for  the  considera- 
tion of  the  question,  as  a  question  of  law,  whether  the  evidence 
tends  to  show  a  right  of  recovery  in  appellee.     *     *     * 


CRERAR  V.  DANIELS. 


209  Illinois,  296.     [1904.] 


Mr.  Justice  Ricks  :     *     *     * 

Complaint  is  made  of  the  refusal  of  the  court  to  mark  "held" 
eleven  alleged  propositions  of  law  submitted  to  it.  The  first 
proposition  was:  "The  court  finds  that  the  planks,  planking, 
stringers,  and  surface  improvements  in  question  in  this  case  were 
fixtures. "  The  second  is  in  the  same  language,  and  asks  the  court 
to  hold  that  they  are  trade  fixtures.  By  the  third  the  court  was 
asked  to  hold  that  the  "plaintiff  surrendered  possession  of  the 
dock  in  question  on  the  date  of  the  expiration  of  his  lease,  and 
that  the  planks,  planking,  stringers  and  surface  improvements  in 
question,  at  the  time  the  premises  were  surrendered  by  the  plain- 
tifi',  had  not  been  removed  or  attempted  to  be  removed  by  the 
plaintiff. ' '  The  fourth  asked  the  court  to  hold  that  the  same  ma- 
terials designated  in  the  previous  instructions  were  annexed  to 
the  realty,  were  adapted  for  the  use  or  purpose  of  the  realty  to 
which  they  were  attached,  and  were  intended  by  the  plaintiff  to 
be  annexed  to  the  realty.  By  the  fifth  the  court  was  asked  to 
hold  that  the  property  sued  for  had  no  such  market  value,  in 
law,  as  entitled  the  plaintiff  to  recover  against  defendants.    The 


such  case  the  finding  of  facts  by  the 
judge  are  as  conclusive  upon  the 
appellate  court  as  the  verdict  of  a 
jury,  and  will  not  be  reviewed.  But 
in  such  a  trial  either  party  has  the 
right  to  have  the  judge  declare  the 
theory  of  law  by  which  he  is  gov- 
erned in  reaching  the  conclusion  of 
fact.  This  is  done  in  the  form  of 
declarations  of  law,  which  are  anal- 
ogous to  instructions  given  to 
juries  and  which  are  subject  to  re- 


view by  the  appellate  court  in  like 
manner  and  with  like  effect. 

ti*  *  *  rjij^g  court  does  not 
declare  a  conclusion  of  fact,  or  of 
law  and  fact,  but  a  legal  conclusion 
'that  under  the  pleadings  and  evi- 
dence in  the  case  the  plaintiff  is  not 
entitled  to  recover.'  This  is  a  dec- 
laration of  law  given  by  the  court, 
and  not  a  finding  of  fact  by  the 
judge  sitting  as  a  jury." 


Sec.  2.]  crerar  v.  daniels.  671 

sixth  was,  that  such  property,  located  as  it  was,  had  no  market 
value.  The  seventh  was,  that  the  defendants  leased  the  realty  in 
question  and  took  possession  thereof  with  the  property  claimed 
upon  the  same,  and  that  plaintiff  had  no  right,  against  the  de- 
fendants, to  enter  upon  the  realty  and  take  possession  of  and 
remove  said  property. 

We  have  set  out  enough  of  these  propositions  that  their  real 
character  may  be  seen,  and  it  is  quite  apparent  that  none  of 
them  are  propositions  of  law,  but  are  simply  requests  to  the 
court  to  make  certain  specific  findings  of  facts  involved  in  the 
consideration  of  the  case.  By  Section  41  of  the  Practice  act  either 
party  is  authorized  to  "submit  to  the  court  written  propositions 
to  be  held  as  law  in  the  decision  of  the  case."  This  provision  of 
the  statute  authorizes  the  offering  of  propositions  of  law  to  be 
passed  upon  by  the  court,  so  that  questions  of  law  arising  in  the 
case  as  to  the  applicability,  force  and  effect  of  the  evidence  may 
be  preserved  and  passed  upon  by  courts  of  review.  They  are 
termed  propositions  of  law  to  be  held  or  refused  by  the  court, 
in  contradistinction  to  the  instructions  that  are  to  be  presented 
and  given  for  the  guidance  of  juries,  but  so  far  as  their  sub- 
stance and  form  is  concerned  they  must  in  all  material  respects 
be  the  same.  Any  form  of  stating  a  proposition  of  law  that 
would  not  be  proper  in  an  instruction  to  a  jury  would  likewise 
be  improper  when  offered  to  the  court  trying  a  cause  in  the  ab- 
sence of  a  jury.  Such  propositions  should  state  the  law,  only, 
and  not  assume  a  state  of  facts  existing  or  attempt  to  find  a 
given  fast  or  state  of  facts.  They  should  be  framed  upon  a 
hypothesis  which  there  are  facts  in  the  record  tending  to  estab- 
lish, and  should  ask  the  court  that  if  those  facts  are  found  by 
the  court,  the  law  applicable  to  those  facts  is  as  stated  in  the 
propositions.  As  we  said  in  First  Nat.  Bank  v.  Northwestern 
Nat.  Bank,  supra  (p.  301)  :  ''The  statute  does  not  contemplate 
that  under  the  cloak  of  written  propositions  of  law  a  party  liti- 
gant shall  have  the  right  to  call  upon  the  court  to  find  in  his  or  its 
favor,  seriatim,  all  the  special  or  particular  facts  involved  in 
the  evidence ;  and,  dehors  the  statute,  it  is  not  a  common  law 
function  of  a  judge,  in  a  common  law  action,  to  make  special 
findings  of  fact." 

In  County  of  La  Salle  v.  Milligan,  143  111.  321,  we  said 
(p.  345)  :  "Proposition  13,  submitted  by  appellant,  Avas  prop- 
erly refused.    B}^  it  the  court  was  required  to  hold  as  a  fact  that 


672  TRIALS   BY   THE    COURT.  [ChAP.    V. 

the  sheriff  had  'collected  from  sources  other  than  the  county, 
during  each  year  of  his  term  as  sheriff,  fees  in  excess  of  the 
salary  or  compensation  allowed  him  by  the  board.'  The  fact  is 
not  stated  hypothetically  and  the  opinion  of  the  court  as  to  the 
law  arising  thereon  asked,  as  may  be  done  where  the  hypothesis 
assumed  finds  support  in  the  evidence,  but  the  court,  if  it  held 
the  proposition,  was  compelled  to  assume  the  fact  as  established. 
This  is  improper.  The  purpose  of  the  statute  is  to  enable  the 
party  to  submit  propositions  with  a  view  to  obtaining  the  opin- 
ion of  the  court  upon  material  and  controlling  principles  of  law 
only,  and  when  the  proposition  calls  for  the  opinion  of  the  court 
upon  a  question  of  fact  it  may  properly  be  refused.  For  aught 
we  can  know  or  are  required  to  know  the  court  found  the  fact 
directly  at  variance  with  the  proposition." 

The  last  remark  of  the  court  in  the  above  quotation  is  quite 
applicable  to  the  case  before  us.  It  is  evident  from  the  judgment 
of  the  court  that  upon  all  the  questions  of  fact  proposed  by  the 
appellants  the  court  entertained  a  different  view  to  that  requested 
to  be  held.  The  views  herein  above  expressed  are  but  the  reitera- 
tion of  the  declarations  of  this  court  in  Gilbert  v.  Sprague,  196 
111.  444;  0 'Flaherty  v.  Mann,  id.  304;  In  re  Tobin,  id.  484; 
Field  V.  Crawford,  146  id.  136;  Board  of  Supervisors  v.  Com- 
missioners of  Highways,  164  id.  574;  Order  of  Foresters  v.. 
Schweitzer,  171  id.  325. 

Wliether  the  plank  and  stringers  for  Avhich  recovery  is  sought 
in  this  case  w^ere  personal  property,  or  whether  they  were  trade 
fixtures  -which  might  be  removed  by  the  tenant,  or  whether  they 
had  become  attached  to  and  a  part  of  the  realty  and  passed  with 
the  lease  to  appellants,  were  questions  of  fact,  in  determining 
which  appellants  were  entitled,  if  they  wished,  to  have  the  legal 
effect  of  any  state  of  facts  appearing  in  evidence  passed  upon 
by  the  court  by  propositions  of  law  submitted  for  that  purpose. 
The  trial  court  found  that  the  property  sued  for  was  personal 
property,  for  which  recovery  could  be  had,  and  gave  judgment 
accordingly,  and  as  the  Appellate  Court  affirmed  the  judgment 
of  the  trial  court  we  must  presume  that  it  found  the  facts  the 
same  way.  There  being,  then,  no  further  propositions  or  ques- 
tions of  law  presented  for  our  consideration,  it  becomes  our  duty 
to  affirm  the  judgment  of  the  Appellate  Court,  which  is  accord- 
ingly done. 

Judgment  affirmed. 


Sec.  3.]  Hudson  v.  weight.  673 

HUDSON  V.  WRIGHT. 

204  Missouri,  412.     [1907.] 

Lamm,  J.  Sarah  A.  Hudson  lodged  her  bill  in  equity  against 
her  husband,  Jacob  I.,  and  one  Jubal  A.  Wright,  having  for  its 
object,  first,  to  set  aside  a  sheriff's  deed  dated  September  14, 
1902,  conveying  to  said  AVright  the  interest  of  said  Jacob  I.  in 
and  to  a  described  part  of  the  northeast  quarter  of  the  northeast 
quarter  of  section  4,  township  56,  range  32,  in  Clinton  county; 
second,  to  vest  the  fee  of  said  land  in  her.  The  decree,  nisi,  went 
in  her  favor — Hudson  abiding  the  event  of  the  trial,  but  AVright 
appealing  here.     *     *     * 

III.  Error  is  assigned  in  the  refusing  of  appellant's  declara- 
tions of  law.  But  instructions  fill  no  office  in  equity  practice — 
ergo,  are  out  of  place  in  this  case.  The  question  here  is  not  what 
views  the  chancellor  may  have  had  on  the  law — the  heart  of  the 
matter  is :  Did  the  decree  do  equity  ?  And  that  is  the  impelling 
question  we  must  seek  out  an  answer  to  on  appeal,  and  none  other, 
(Bouton  V.  Pippin,  192  Mo.  1.,  c.  474,  et  seq.)  There  is  no 
merit  in  this  assignment  of  error.  ^ 


Section  3.     Special  Findings. 

BRITISH  QUEEN  MINING  CO.  v.  BAKER  MINING  CO. 

139  V.  8.  222.     [1890.] 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

This  case  was  tried  by  the  Circuit  Court,  without  a  jury,  and 
under  sections  649  and  700,  Rev.  Stat.,  the  finding  must  be 
•'either  general  or  special."  It  cannot  be  both.  Here  there  was 
a  general  finding. 

1  And  so  in  probate  matters  where  and  it  was  not  necessary  to  submit 

there    is    no    right   to   a    jury — Mb.  propositions    of    law.      As    the    pro- 

JusTiCE    Cartwkight,    in    Marin    v.  ceeding    is    governed    by    equitable 

Martin,  170  111.  18 :     "As  there  was  principles    and    practice,    the    facts 

no  right  to  a  jury  trial,  section  41  are  still  open  to  investigation  in  this 

of  the  practice  aCt  does  not  govern,  court,  and  it  was  not  necessary  that 
H.  T.  p.— 43 


674 


TRIALS   BY   THE   COURT. 


[Chap.  V. 


The  record  contains  a  bill  of  exceptions,  but  no  exceptions  to 
the  rulings  of  the  court  in  the  progress  of  the  trial  of  the  cause 
were  thereby  duly  presented,  and  although  after  reciting  the 
evidence  it  is  therein  stated  that  "the  court  thereafter  and 
during  the  said  term  made  the  following  findings  of  fact  and 
judgment  thereon,"  which  is  followed  by  an  opinion  of  the  court 
assigning  reasons  for  its  conclusions,  this  cannot  be  treated  as  a 
special  finding  enabling  us  to  determine  whether  the  facts  found 
support  the  judgment,  nor  can  the  general  finding  be  disre- 
garded. Dickinson  v.  Planters'  Bank,  16  Wall.  250;  Ins.  Co.  v. 
Folsom,  18  Wall.  237 ;  Norris  v.  Jackson,  9  Wall.  125 ;  Flanders 
V.  Tweed,  9  Wall.  425 ;  Ins.  Co.  v.  Tweed,  7  Wall.  44 ;  Miller  v. 
Life  Ins.  Co.,  12  Wall.  285 ;  Ins.  Co.  v.  Sea,  21  Wall.  158 ;  Martin- 
ton  V.  Fairbanks,  112  U.  S.  670 ;  Raimond  v.  Terrebonne  Parish, 
132  U.  S.  192 ;  Glenn  v.  Fant,  134  U.  S.  398 ;  Lloyd  v.  Mc Will- 
iams, 137  U.  S.  576. 

The  record  raises  no  questions  open  to  revision  by  us  and  the 
judgment  is 

Affirmed.^ 


BERGER  V.  VARRELI\IANN. 

127  New  York,  281.     [1891.] 

FoLLETT,  Ch.  J.  The  judgment  which  the  appellant  obtained 
by  the  confession  of  his  debtors  is  sought  to  be  set  aside  and  the 
money  collected  by  virtue  of  it  recovered  for  the  benefit  of  the 
creditors  of  the  judgment  debtor,  on  the  ground  that  when  con- 
fessed the  confessors  intended  to  make  a  general  assignment  and 
prefer  the  claim  of  the  appellant  through  a  judgment  and  execu- 
tion, and  thereby  evade  the  prohibition  of  the  thirtieth  section  of 
the  Assignment  Act,  which  is  as  follows :     *     *     * 

The  appellant  insists  that  his  judgment  and  execution  by  which 
he  secured  more  than  one-third  of  the  estate  of  the  insolvent 


the  appellate  court  should  recite  in 
its  judgment  a  finding  of  facts. 
The  sections  of  the  practice  act  re- 
lied upon  do  not  apply  to  cases  of 
this  kind.  Moore  v.  Tierney,  100 
111.  207." 


The  provision  for  special  findings 
is  not  applicable  to  equity  cases. 
Pitts  V.  Pitts,  201  Mo.  356. 

1  See  also  U.  S.  v.  Sioux  City 
Stock  Yards,  167  Fed.  126. 


Sec.  3.]  beegee  v.  vaeeelmann.  675 

debtors  are  not  brought  within  the  prohibition  of  the  section, 
because:  (1)  The  trial  court  did  not  find  as  a  fact  that  the 
debtors  contemplated  making  a  general  assignment  when  the 
judgment  was  confessed.  (2)  The  trial  court  did  not  find  as  a 
fact  that  the  appellant  knew  when  he  received  the  confession  of 
judgment  and  seized  the  property  by  virtue  of  the  execution 
issued  thereon  that  the  debtors  contemplated  making  a  general 
assignment.  (3)  The  preference  was  not  created  in  the  general 
assignment,  but  by  a  separate  instrument.     *     *     * 

The  trial  court  found  that  the  estate  of  the  assignors  was  not 
worth  three  times  the  amount  of  the  appellant's  judgment,  and 
that  its  collection  consumed  more  than  one-third  of  it,  and  that 
when  the  judgment  was  confessed,  execution  issued  and  levied 
and  the  assignment  executed,  the  assignors  and  George  E.  Var- 
relmann  all  knew  that  the  sale  under  the  execution  to  be  issued 
would  absorb  more  than  one-third  of  the  debtors'  assets.  The 
decision  signed  by  the  trial  judge  contains  seventeen  findings  of 
fact  and  seven  conclusions  of  law.  The  first  and  second  of  the 
latter  are  as  follows : 

"First.  The  judgment  confessed  in  favor  of  the  defendant 
George  E.  Varrelmann,  and  the  execution  and  levy  which  fol- 
lowed were  made  by  the  defeiidants  Henry  Erdtmann  and  Gus- 
tave  Varrelmann,  in  contemplation  of  their  general  assignment 
and  as  part  thereof,  and  for  the  purpose  of  preferring  said  de- 
fendant, George  E.  Varrelmann,  in  whose  favor  the  said  judg- 
ment was  confessed  by  them,  out  of  their  property,  for  more 
than  one-third  of  the  net  assets  of  the  said  defendants,  Henry 
Erdtmann  and  Gustave  Varrelmann,  and  to  prevent  the  said 
assets  from  going  into  the  hands  of  the  defendant  Kracht,  as 
assignee,  and  being  distributed  to  the  plaintiffs,  and  the  other 
creditors  of  the  said  defendants,  Henry  Erdtmann  and  Gustave 
Varrelmann,  pursuant  to  the  terms  of  their  general  assignment 
deed. 

Second.  Said  confession  of  judgment  and  the  execution  and 
levy  which  followed  were  made  in  fraud  of  the  said  general 
assignment,  and  are  void,  and  should  be  set  aside  and  vacated, 
and  the  assets  levied  upon,  or  the  entire  proceeds  thereof,  should 
be  paid  the  defendant  Kracht,  as  assignee,  to  be  distributed  pur- 
suant to  the  terms  of  the  deed  of  general  assignment. ' ' 

The  learned  counsel  for  the  appellant  insists  that  these  con- 
clusions cannot  be  given  the  effect  of  findings  of  fact,  but  must 


676  TRIALS   BY   THE    COURT,  [ChAP.   V. 

be  held  to  be  conclusions  of  law,  and  that  the  facts  so  found  can- 
not be  considered  on  this  appeal.  This  contention  is  not  well 
founded,  for  it  is  well  settled  that  though  a  "finding  of  fact" 
be  called  a  ' '  conclusion  of  law ' '  and  improperly  classified  as  such 
in  the  decision  signed  (Code  C.  P.  §  1022),  it  will,  for  the  pur- 
pose of  upholding  a  judgment,  be  given  the  same  effect  as  though 
embraced  within  and  designated  as  one  of  the  findings  of  fact. 
(Parker  v.  Baxter,  86  N.  Y.  586 ;  Murray  v.  Marshall,  94  id.  611 ; 
Adams  v.  Fitzpatrick,  125  id.  124.) 

The  facts  found  in  the  conclusions  of  law  above  quoted — that 
the  assignors  confessed  the  judgment  in  contemplation  of  making 
a  general  assignment  as  a  part  thereof,  and  for  the  purpose  of 
preferring  George  E.  Varrelmann  for  more  than  one-third  of 
their  estate,  that  the  confession  of  judgment,  the  execution  and 
levy  were  made  in  fraud  of  the  general  assignment  will  be  given 
the  same  force  in  support  of  this  judgment  as  though  they  had 
been  properly  classified  in  the  decision  signed.     *     *  ,  * 


DEMMING  V.  WESTON. 

15  Wisconsin,  236.     [1862.] 

By  the  court,  Dixon,  C.  J.  Action  commenced  before  a  justice 
of  the  peace  to  recover  damages  for  the  conversion  of  a  quantity 
of  barrel  hoops,  the  property  of  the  plaintiff,  of  the  alleged  value 
of  $18.50.  Oral  answer,  denying  each  and  every  allegation  of 
the  complaint.  Judgment  for  the  defendants  before  the  justice, 
and  appeal  by  the  plaintiff  to  the  municipal  court  of  the  city  and 
town  of  Ripon.     *     *     * 

*  *  *  It  was  afterwards  tried  before  the  court  without  a 
jury,  and  judgment  rendered  for  the  plaintiff.  The  finding, 
so  far  as  it  related  to  facts  and  conclusions  of  law,  omitting 
formal  parts,  is  in  these  words:  ''The  court  finds  that  the  de- 
fendants converted  the  property,  and  that  a  judgment  be  entered 
for  the  plaintiff  against  the  said  defendants  for  the  sum  of 
eighteen  and  fifty-hundredths  dollars,  damages  and  costs."  To 
this  the  defendants  excepted,  as  insufficient  in  the  facts  found 
and  statements  of  legal  conclusions.     *     *     * 

The  finding  is  altogether  defective.  No  fact  whatever  is  found 
except  that  "the  defendants  converted  the  property,"  but  what 


Sec.  3.]  murphy  v.  bennett.  677 

property,  its  value,  and  whether  it  belonged  to  the  plaintiff,  we 
are  not  informed  with  that  certainty  which  the  law  requires. 
And  the  conclusion  of  law,  if  finding  "that  a  judgment  be 
entered  for  the  plaintiff"  can  be  said  to  be  one,  is  very  vague, 
and  not  separately  stated.  R.  S.,  Chap.  132,  §  19.  The  facts 
found  by  the  judge  in  such  cases,  are  in  the  nature  of  a  special 
verdict  by  the  jury  (9  Wis.  492),  and  should  be  stated  with 
such  fullness  and  accuracy  that  the  court  can  see  that  the  judg- 
ment is  supported  by  them. 

A  very  general  finding  may  do,  if  it  come  within  this  rule,  and 
it  may  be  sufficient  perhaps,  if  it  refers  to  the  complaint  or  other 
pleading  containing  a  complete  statement  of  the  facts  found. 
But  here  is  nothing  of  the  kind — neither  a  written  statement  of 
the  facts  found,  nor  a  reference  to  other  papers  from  which  they 
can  be  ascertained. 

The  judgment  must  for  these  reasons  be  reversed,  and  the 
cause  remanded  for  further  proceedings  according  to  law. 


MURPHY  v.  BENNETT. 

68  California,  528.     [1886.] 

Belcher,  C.  C.  This  is  an  appeal  by  the  plaintiff  from  a  judg- 
ment in  favor  of  the  defendant,  and  it  comes  here  on  the  judg- 
ment roll.  The  only  question  presented  is  as  to  the  sufficiency 
of  the  findings. 

"^he  action  was  commenced  to  recover  damages  from  the  de- 
fendant for  tearing  down  a  barn,  and  converting  the  materials 
thereof  to  his  own  use. 

The  complaint  alleged  that  the  plaintiff  was  the  owner  of  the 
barn,  and  in  the  lawful  and  peaceable  possession  of  the  land  on 
which  it  was  situated,  and  that  on  or  about  the  ninth  day  of 
October,  1880,  the  defendant,  without  right  or  authority,  and 
against  the  will  of  the  plaintiff,  willfully  and  maliciously  tore 
down  the  said  building,  and  removed  the  whole  of  it  from  the 
premises  where  it  stood,  and  converted  the  same  to  his  own  use. 

The  answer  denied  that  the  plaintiff  was  at  the  times  named 
in  the  complaint,  or  at  any  time,  the  owner  of  the  barn,  or  in 
possession  of  the  premises  on  which  it  Avas  situated,  and  then 
set  up  two  affirmative  defenses. 


678  TRIALS    BY    THE    COURT.  [ChAP.    V, 

The  court  found  that  the  plaintiff  was  at  the  times  mentioned 
in  his  complaint  in  the  lawful  and  peaceful  possession  of  the 
half-section  of  land  on  which  the  barn  was  alleged  to  have  been 
situated,  and  then, — 

"That  the  plaintiff  was  not  the  owner  of  the  frame  building 
situate  on  the  tract  of  land  described  in  his  complaint  at  the  time 
the  same  was  torn  down  and  removed  by  the  defendant. 

"That  the  defendant  was  the  owner  of  said  building  at  the 
time  he  tore  the  same  down  and  removed  it." 

There  was  no  finding  upon  the  affirmative  matters  set  up  in 
the  answer. 

It  is  insisted  for  the  appellant  that  the  findings  above  quoted 
are  not  findings  of  fact,  but  conclusions  of  law,  and  that  for 
want  of  findings  upon  the  affirmative  matters  the  judgment  must 
be  reversed. 

Findings  should  be  statements  of  the  ultimate  facts  in  con- 
troversy, and  not  of  probative  facts,  or  mere  conclusions  of  law. 
(Matthews  v.  Kinsell,  41  Cal.  514;  Pico  v.  Cuyas,  47  Cal.  174.) 

Findings  of  probative  facts  are  sometimes  held  sufficient,  but 
only  when  the  ultimate  fact  necessarily  results  from  the  probative 
facts.  (Downing  v.  Graves,  55  Cal.  544;  Biddel  v.  Brizzolara, 
56  Cal.  381.) 

The  facts  should  be  found,  and  not  mere  conclusions  of  law 
stated. 

But  a  finding  ' '  that  the  plaintiff  did  not  own  the  several  tracts 
of  land  described  in  the  several  answers  of  defendants,  but  that 
the  defendants  owned  the  same  in  severalty,  as  set  forth  in  their 
answers, ' '  has  been  held  sufficient  to  support  the  .judgment  in  an 
action  of  ejectment.     (Smith  v.  Acker,  52  Cal.  217.) 

So  a  finding  that  the  defendant  "has  a  good  and  perfect  title 
to  said  property"  has  been  held  sufficient.  (Frazier  v.  Crowell, 
52  Cal.  399.) 

So  a  finding  "that  the  plaintiff  was  the  owner  and  in  posses- 
sion of  the  property  on  the  day  that  the  defendant  seized  upon 
it,  and  removed  it  from  her  possession,  custody,  and  control," 
has  been  held  sufficient  in  an  action  to  recover  damages  for  the 
conversion  of  personal  property.  (Haley  v.  Nunan,  11  Pac. 
C.  L.  J.  523.) 

There  should  be  findings  upon  all  the  material  issues  in  the 
case,  but  a  judgment  will  not  be  reversed  for  want  of  a  finding 
on  a  particular  issue,  where  it  is  apparent  that  the  failure  to 


Sec.  3.]  murphy  v.  bennett.  679 

liiid  on  that  issue  is  iu  no  way  prejudicial  to  the  appellant. 
(Porter  v.  Woodward,  57  Cal.  535;  McCourtney  v.  Fortune,  57 
Cal.  617;  People  v.  Center,  66  Cal.  551.) 

Here  the  allegation  in  the  complaint  is  that  the  plaintiff  ' '  was 
the  owner  of  a  certain  frame  building,  situate,"  etc. 

The  answer  denied  that  the  plaintiff  was  the  owner  of  the 
building.  Whether  the  plaintiff  did  own  the  building  or  not 
was,  then,  the  ultimate  fact  to  be  determined,  and  upon  the 
issue  thus  raised,  the  court  found  against  the  plaintiff. 

We  think  it  clear  that  the  findings  referred  to  are  findings 
of  fact,  and  not  conclusions  of  law. 

This  being  so,  we  are  unable  to  see  how  the  plaintiff  is  preju- 
diced by  the  failure  of  the  court  to  find  upon  the  affirmative 
defenses  set  up  in  the  answer,  as,  if  the  plaintiff  was  not  the 
owner  of  the  building,  it  is  of  no  moment  whether  the  defend- 
ant justified  his  taking  of  it,  or  not. 

In  support  of  his  position  that  he  was  entitled  to  findings 
upon  the  affirmative  defenses,  counsel  for  appellant  cites  Bil- 
lings V.  Everett,  52  Cal.  661.  But  that  case  is  not  in  point. 
There  the  defendant  set  up  an  affirmative  defense,  and  without 
any  finding  upon  it,  judgment  was  given  in  favor  plaintiff.  This 
court  held,  in  effect,  that  if  the  facts  set  up  in  the  answer  were 
true,  they  constituted  a  defense  to  the  action,  and  that  no  judg- 
ment could  properly  be  rendered  in  favor  of  plaintiff  until  there 
was  a  finding  as  to  whether  they  were  or  were  not  true. 

The  judgment,  we  think,  should  be  affirmed. 

Searls,  C,  and  Foote,  C,  concurred. 

The  court.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  is  affirmed. 

Thornton,  J.,  dissenting.  I  dissent.  The  finding  that  plain- 
tiff was  not  the  owner  of  a  building,  but  that  the  defendant  was, 
is  neither  a  finding  of  an  ultimate  nor  probative  fact,  but  a  gen- 
eral verdict  reached  by  application  of  rules  of  law  to  the  facts 
found.  Whether  A  is  the  owner  of  certain  property  is  a  mixed 
question  of  law  and  fact.  Such  an  issue,  when  contested,  can 
only  be  determined  after  a  trial  in  which  evidence  is  introduced 
and  the  law  applied  to  the  facts  found.  Wlien  tried  before  a 
jury,  they  should  be,  and  usually  are,  instructed  as  to  the  rules 
of  law  to  be  applied  to  the  facts  which  they  find  to  exist.  The 
court  usually  instructs  the  jury  as  to  every  phase  which  the  case 
may  assume  upon  the  evidence  before  them,  and  are,  or  should 


680  TRIALS    BY    THE    COURT.  [ChAP.    V. 

be,  told  the  rules  of  law  which  should  govern  them  in  their  de- 
liberations, and  be  applied  to  the  facts  as  they  find  them  to  exist. 
Facts,  then,  as  it  was  said  by  Justice  Black,  are  "the  raw  mate- 
rial of  verdicts."  Verdicts  are  elaborated  from  them.  A  gen- 
eral verdict  is  synthetic — a  compound  of  law  and  fact.  The  spe- 
cial verdict  is  analytic.  It  finds  the  facts,  and  submits  the  law 
to  the  court.  Such  a  verdict  concludes  by  a  statement  that  as 
they  (the  jury)  are  ignorant  of  the  law,  they  find  the  facts  as 
set  forth  in  the  verdict,  and  submit  the  questions  of  law  arising 
on  them  to  the  court,  and  if  the  court  should  be  of  opinion  that, 
on  the  facts  found,  the  law  is  for  the  plaintiff,  they  find  for  the 
plaintiff,  and  if  for  defendant,  they  so  find.  (Stephen  on  Plead- 
ing, *91;  Abbott's  Law  Diet.,  tit.  Verdict.)  The  naked  facts, 
as  Blackstone  styles  them  (3  Bla.  Com.  377),  are  alone  found, 
from  which  every  element  of  law  is  eliminated.  These  facts  are 
the  ultimate  facts ;  and  are  the  facts  separated  from  the  law  on 
which  the  rights  of  the  parties  are  to  be  determined.  The  jury 
did  this, — refrained  from  finding  the  law,— that  they  might 
escape  an  attaint  for  a  false  verdict.  (See  Emeric  v.  Alvarado, 
64  Cal.  603-605.) 

How  can  it  then  be  said  that  a  finding  that  A  is  the  owner  of 
property  is  a  finding  of  a  fact,  when  this  can  only  be  determined 
in  the  case  of  a  contest,  after  hearing  all  the  evidence,  determin- 
ing which  facts  exist,  and  applying  to  them  the  rules  which  the 
law  furnishes  for  the  admeasurement  of  the  rights  of  the  par- 
ties? The  facts  must  be  so  found  that  the  appellate  court  may 
see  that  they  warrant  the  conclusion  of  law  reached  and  the 
judgment  entered ;  that  the  judicial  mind  may  perceive  that  the 
rules  of  law,  on  being  applied  to  the  facts  found,  lead  to  the 
conclusion  of  law  and  judgment  arrived  at. 

The  mind  of  the  court  is  not  called  on  to  act  at  all  when  the 
finding  is  that  the  plaintiff  is  not  the  owner  of  the  property 
sued  for,  but  that  the  defendant  is.  If  this  is  a  proper  finding 
of  the  facts,  the  duty  of  the  court  becomes  wholly  that  of  a  serv- 
ant bound  to  obey,  and  must  enter  judgment  as  on  a  general 
verdict.  In  fact,  the  verdict  is  a  general  one.  A  general  verdict 
is  one, which  the  jury  finds  in  the  terms  of  the  issue.  (Abbott's 
Law  Diet.,  tit.  Verdict.)  Here  the  finding  is  in  such  words. 
Coke,  illustrating  this  point,  says :  ' '  There  be  two  kindes  of  ver- 
dicts, viz.,  one  generall,  and  another  at  large  or  especiall.  As  in 
an  assize  of  7iovel  disseisin,  brought  by  A  against  B,  the  plain- 


I 


Sec.  3.]  murphy  v.  bennett.  681 

tife  makes  his  plaint,  Quod  B  disseisivit  cum  de  20  acris  terrae 
cum  pertinentiis;  the  tenant  pleades,  Quod  ipse  nullam  injuriam 
sen  disseisinam  praefato  A  indefecit,  etc.  The  recognitors  of  the 
assize  doe  finde,  Quod  praedict  A  injuste  &  sine  judicio  disseisivit 
praedid  B  de  praedict  20  acris  terrae  cum  pertinent,  etc.  This 
is  a  general  verdict."  (2  Co.  Lit.  226  b.)  If  the  finding  by  the 
jury  that  "the  aforesaid  A  unjustly  and  without  judgment 
[right]  disseised  the  aforesaid  B  from  the  aforesaid  twenty 
acres,  with  their  appurtenances,"  is  a  general  verdict,  why  is 
not  a  finding  that  "the  plaintiff  is  the  owner  of  the  thing  sued 
for"  a  general  verdict?  (Stephens  v.  Westwood,  25  Ala.  716; 
Chedotoner  v.  Dominguez,  7  Mart.  521 ;  Gonzalez  v.  Leon,  31  Cal. 
98 ;  Mendelsohn  v.  Anaheim,  etc.,  Co.,  40  Cal.  657 ;  Downing  v. 
Bourliek,  21  Mo.  149;  Allison  v.  Darton,  24  Mo.  343;  Bailey 
V.  Wilson,  29  Mo.  21;  Foster  v.  Jackson,  Hob.  52-56.)  I  can 
perceive  no  difference.  The  one  verdict,  as  the  other,  is  com- 
pounded of  law  and  fact,  and  the  facts  are  not  separated  from 
the  law,  as  is  the  case  in  a  special  verdict ;  and  the  court,  on  such 
verdict,  has  no  discretion  in  entering  judgment.  The  judgment 
must  follow  the  verdict. 

Now,  the  court  in  the  case  under  consideration  was  bound  to 
find  the  facts  separately  from  its  conclusions  of  law.  Such  is 
the  statute.  (Code  Civ.  Proc,  §  638.)  This  is  done  for  the 
reason  indicated  above, — that  a  court  may  examine  the  facts 
found,  and  see  that  they  justify  the  conclusions  of  law  and 
judgment  pronounced  on  them. 

The  statute  is  intended  inter  alia  to  furnish  a  criterion  or  test 
by  which  to  determine  whether  the  court  below  has  applied  the 
law  correctly  to  the  facts  found.  In  the  case  of  the  finding  here, 
the  court  has  nothing  to  which  to  apply  this  test.  If  the  find- 
ing is  a  proper  one,  the  court  below  has  conclusively  determined 
it,  and  this  court  is  furnished  with  nothing  by  which  it  can 
determine  whether  the  proper  rules  of  law  have  been  applied  or 
not.  Tlie  record  as  to  the  data  on  which  to  determine  such 
question  is  an  utter  blank.  This  court  must  determine  blindly 
whether  the  court  below  has  ruled  correctly  or  not.  By  adopt- 
ing the  findings  as  correct,  the  parties  are  deprived  of  a  safe- 
guard which  the  law  intended  to  supply  to  them,  viz.,  such  a 
setting  forth  of  facts  in  the  findings  that  the  appellate  tribunal 
may  see  by  looking  at  the  facts  found  that  the  court  below  did 
not  err  in  its  legal  conclusions.    On  what  does  the  judgment  of 


682 


TRIALS   BY   THE    COURT. 


[Chap.  V. 


this  court  operate,  in  examining  a  finding  which  says  that  the 
plaintiff  is  not  the  owner  of  a  certain  house,  and  the  defendant  is 
the  owner?  There  is  clearly  nothing  in  such  a  finding  for  the 
judicial  mind  to  take  hold  of. 

Nor  is  such  a  finding  a  probative  fact.  A  probative  fact  is  a 
fact  which  proves  or  tends  to  prove  something.  It  is  an  evi- 
dential fact.  What  is  to  be  proved  when  it  is  said  that  A  is  the 
owner  or  B  is  not  the  owner  ?  The  result  has  been  reached,  and 
no  evidence  is  required. 

This  court  may  have  the  right  under  the  constitution  as  an 
appellate  tribunal  to  infer  one  fact  from  another  in  a  special 
verdict,  or  a  finding  of  facts,  where  the  result  is  determined  by  a 
fixed  and  certain  rule  of  law.  Otherwise,  when  it  infers  one 
fact  from  another  fact,  it  is  exercising  original  jurisdiction,  and 
assuming  a  power  which  has  not  been  conferred  on  it.  This 
it  is  always  bound  to  avoid. 

I  cannot  agree  that  the  facts  are  properly  found  herein,  and 
in  my  opinion,  the  judgment  should  be  reversed,  and  the  cause 
remanded  for  a  new  trial. ^     *     *     * 

1  See    Ins.    Co.    v.    Trust    Co.,    71 
Fed.  88. 


CHAPTER  VI. 
NEW  TRIALS. 

Section  1.    Grounds.* 

ANONYMOUS. 

14  Henry  VII,  1  (3).     [1499.] 

In  the  common  bench  a  jury  was  charged,  and  gave  a  verdict 
for  the  plaintiff.  And  now  Kingsmill  came  to  the  bar  and  said 
that,  after  the  jury  was  charged,  and  before  the  verdict,  the 
jurors  ate  and  drank  ;^  and  he  prayed  a  venire  facias  de  novo. 
Upon  which  Vavisor  held  that  the  verdict  was  bad  because  of  this 
misdemeanor  ^  of  the  jurors,  and  awarded  a  new  venire  facias.^ 
Quod  Not  a. 


PRIOR  V.  POWERS. 

lKeble,811.     [1665.] 

In  an  action  upon  the  case  for  misusing  a  horse,  Orlaby  prayed 
a  new  trial,  because  the  jurors  in  Bedfordshire  being  divided  six 

*  It  will  be  noted  that  most  of  ~  Brookes  New  Cases,  447 
the  errors  treated  under  chapters  (1556):  "Jury  took  a  scroll  of 
III,  IV  and  V  are  corrected  by  a  the  plaintiff,  which  was  not  deliv- 
new  trial,  e.  g.,  error  in  refusing  a  ered  to  them  in  court,  and  passed 
continuance,  in  selecting  a  jury,  in  for  the  plaintiff:  and  because  that 
ruling  on  matters  of  evidence,  in  this  matter  appeared  to  the  court 
compelling  joinder  in  a  demurrer  by  examination,  therefore  the  plain- 
to  the  evidence,  in  directing  a  ver-  tiff  shall  not  have  judgment.  3  M. 
diet,  in  charging  the  jury,  etc.  1  B.  Jurors  8." 

It  is  not  intended  in  this  section  3  For  the  supposed  distinction  be- 
to  exhaust  the  possible  grounds  for  tween  a  motion  for  a  new  trial  and 
new  trials,  but  merely  to  take  up  a  venire  facias  de  novo,  see  L.  C.  J. 
the  more  common  ones,  not  touched  Willes  in  Witham  v.  Lewis,  1  Wil- 
under  the  preceding  headings. — Ed.  son  48,  loc.  55-6. 

1  See  Sanders  v.  Freeman,  Moore, 
33,  ante,  p.  590. 

683 


684  NEW   TRIALS  [ChAP.    VI. 

and  six  they  agreed  by  lot,  putting  two  sixpences  into  a  hat, 
that  which  the  bailiff  took,  that  way  the  verdict  should  go,  which 
was  for  the  plaintiff,  and  second,  damages ;  but  the  court  denied 
it,  because  it  appeared  only  by  pumping  a  juryman,  who  con- 
fessed all ;  but  being  against  himself,  it  was  not  much  regarded. 
Also  the  court  cannot  grant  new  trial  without  punishing  the 
jury,  which  cannot  be  by  this  confession  against  themselves : 
And  by  Windham,  this  is  as  good  a  way  of  decision  as  by  the 
strongest  body,  which  is  the  usual  way,  and  is  suitable  in  such 
cases  to  the  law  of  God.  Twisden  doubted  it  would  be  of  ill 
example,  and  in  Sir  Philip  Acton  case,  on  such  verdict,  on  fillip 
of  counter,  a  new  trial  was  granted,  but  here  it  was  denied. 


HALE  V.  COVE. 

1  Strange,  642.      [1726.] 

The  jury  having  sat  up  all  night,  agreed  in  the  morning  to  put 
two  papers  into  a  hat,  marked  P.  and  D.  and  so  draw  lots;  P. 
came  out,  and  they  found  for  the  plaintiff,  which  happened  to  be 
accoi'ding  to  the  evidence  and  the  opinion  of  the  judge. 

Upon  motion  for  a  new  trial,  it  was  agreed  that  the  verdict 
must  be  set  aside;  but  the  question  was,  whether  the  defendant 
should  pay  costs;  the  court  inclined  to  give  the  plaintiff  costs, 
comparing  it  to  the  case  of  a  verdict  against  evidence ;  but  at  last 
it  was  agreed  that  the  costs  should  wait  the  event  of  the  new 
trial. 


DANA  V.  TUCKER. 

4  Johnson  (N.  Y.),  487.      [1809.] 

This  was  an  action  for  a  breach  of  promise  of  marriage,  tried 
at  the  last  Madison  circuit,  when  the  jury  found  a  verdict  for  the 
plaintiff  for  $439.58. 

Gold  now  moved  to  set  aside  the  verdict,  for  the  misbehavior 
of  the  jury.  He  read  the  affidavit  of  the  constable,  who  was 
sworn  to  attend  the  jury,  while  they  retired  to  deliberate  on 
their  verdict,  who  stated,  that  the  jurors  agreed,  that  each  of 
them  should  mark  down  such  sum  as  he  thought  fit  to  find,  and 


Sec.  1.]  slade's  case.  685 

the  sum  total  being  divided  by  twelve,  the  quotient  should  be  the 
verdict,  and  that  the  verdict  was  so  ascertained. 

Similar  affidavits  of  two  of  the  jurors  were  also  read. 

N.  Williams,  contra,  read  the  affidavits  of  two  other  jurors, 
stating  that  the  jury,  after  some  deliberation,  unanimously 
agreed  to  find  a  verdict  for  the  plaintiff;  that  each  juror  then 
privately  marked  the  sum  he  was  inclined  to  give ;  eight  of  them 
marked  $500,  one  $600,  and  one  $50.  The  sums  so  marked  were 
added  together,  and  the  amount  divided  by  twelve,  and  the  sum 
produced  by  the  division  they  afterwards  agreed  should  be  their 
verdict.  After  the  verdict  was  delivered  in  court,  in  the  usual 
form,  the  jury  were  polled,  and  each  of  the  jurors,  on  being 
asked  whether  he  agreed  to  the  verdict,  declared  his  assent. 

Per  curiam.  The  better  opinion  is,  and  such  is  the  rule  adopted 
by  the  court,  that  the  affidavits  of  jurors  are  not  to  be  received 
to  impeach  a  verdict ;  but  they  may  be  admitted  in  exculpation 
of  the  jurors,  and  in  support  of  their  verdict.  Rejecting  the 
affidavits  of  the  two  jurors  against  the  verdict  there  is  the 
affidavit  of  two  other  jurors  in  favor  of  the  verdict,  which  must 
outweigh  that  of  the  constable.  If  the  jurors  previously  agree 
to  a  particular  mode  of  arriving  at  a  verdict,  and  to  abide  by  the 
contingent  result,  at  all  events,  without  reserving  to  themselves  the 
liberty  of  dissenting,  such  a  proceeding  would  be  improper ;  but 
if  the  means  is  adopted  merely  for  the  sake  of  arriving  at  a 
reasonable  measure  of  damages,  without  binding  the  jurors  by 
the  result,  it  is  no  objection  to  the  verdict.  Such  appears  to  have 
been  the  case  here ;  and  after  the  result  of  the  division  was 
known,  they  individually  assented  to  the  sum  as  their  verdict. 
The  motion  must  be  denied. 

Rule  refused.'^ 


SLADE'S  CASE. 

Style,  138.     [1648.] 

The  court  was  moved  for  judgment  formerly  stayed  upon  a 
certificate  made  by  Baron  Atkins  that  the  verdict  passed  against 

1  See  also  Eay  v.  Goings,  112  111.  For  a   ease   where  the  fact  of   a 

656,   where   it  was   sought   to  elicit  quotient      verdict      sufficiently      ap- 

the    information    on    a    poll    of    the  peared,    see    Int.    Ag.    Co.    v.    Aber- 

jury.  crombie,  63  South.  Kep.  547. 


686  NEW   TRIALS.  [ChAP.    VI. 

his  opinion.  Bacon,  Justice,  said  judgments  have  been  arrested 
in  the  Common  Pleas  upon  such  certificates.  Hales  of  counsel 
with  the  defendant  prayed  that  this  judgment  might  be  arrested, 
and  that  there  might  be  a  new  trial,  for  that  it  hath  been  done 
heretofore  in  like  cases.  But  Roll,  Justice,  held  it  ought  not 
to  be  stayed,  though  it  have  been  done  in  the  Common  Pleas, 
for  it  was  too  arbitrary  for  them  to  do  it,  and  you  may  have 
your  attaint  ^  against  the  jury,  and  there  is  no  other  remedy 
in  law  for  you;  but  it  were  good  to  advise  the  party  to  suffer 
a  new  trial  for  better  satisfaction.  And  let  the  defendant  take 
four  days  from  hence  to  speak  in  arrest  of  judgment  if  the 
posted  be  brought  in,  if  not,  then  four  days  from  the  time  it  shall 
be  brought  in. 


WOOD  V.  GUNSTON. 

Stijle,  466.     [1655.] 

Wood  brought  an  action  upon  the  case  against  Gunston  for 
speaking  of  scandalous  words  against ;  and  amongst  other  words 
for  calling  him  traitor,  and  obtains  a  verdict  against  him  at  the 
bar,  wherein  the  jury  gave  £1500  damages.  Upon  the  supposition 
that  the  damages  were  excessive,  and  that  the  jury  did  favor 
the  plaintiff,  the  defendant  moved  for  a  new  trial.  But  Sergeant 
Maynard  opposed  it,  and  said  that  after  a  verdict  the  partiality 
of  the  jury  ought  not  to  be  questioned,  nor  is  there  any  presidents 
for  it  in  our  books  of  the  law,  and  it  would  be  of  dangerous 
consequence  if  it  should  be  suffered,  and  the  greatness  of  the 
damages  given  can  be  no  cause  for  a  new  trial,  but  if  it  were, 
the  damages  are  not  here  excessive  if  the  words  spoken  be  well 
considered,  for  they  tend  to  take  away  the  plaintiff's  estate  and 
his  life.  Windham  on  the  other  side  pressed  for  a  new  trial, 
and  said  it  was  a  packed  business,  else  there  could  not  have  been 
so  great  damages,  and  the  court  hath  power  in  extraordinary 
cases,  such  as  this  is,  to  grant  a  new  trial.  Glyn,  Chief  Justice : 
It  is  in  the  discretion  of  the  court  in  some  cases  to  grant  a  new 
trial,  but  this  must  be  a  judicial,  and  not  an  arbitrary  discretion, 

1  See  remarks   of  Eyre,  C.  J.,  in 
Gibson  v.  Hunter,  ante,  p.  295. 


Sec.  1.]  WOODFORD  v.  eades.  687 

and  it  is  frequent  in  our  books  for  the  court  to  take  notice  of 
miscarriages  of  juries,  and  to  grant  new  trials  upon  them,  and 
it  is  for  the  peoples  benefit  that  it  should  be  so,  for  a  jury  may 
sometimes  by  indirect  dealings  be  moved  to  side  with  one  party, 
and  not  to  be  indifferent  betwixt  them,  but  it  cannot  be  so  in- 
tended of  the  court ;  wherefore  let  there  be  a  new  trial  the  next 
term,  and  the  defendant  shall  pay  full  costs,  and  judgment  to  be 
upon  this  verdict  to  stand  for  security  to  pay  what  shall  be 
recovered  upon  the  next  verdict. ^ 


WOODFORD  V.  EADES. 

1  Strange,  425.     [1721.] 

On  a  contract  for  stock  between  the  plaintiff  and  J.  S.  they 
each  deposit  £200  in  the  hands  of  the  defendant,  and  J.  S.  not 
performing  his  agreement  the  plaintiff  sues  for  the  deposit, 
and  had  judgment  on  demurrer,  and  took  out  a  writ  of  inquiry, 
and  proved  his  case ;  but  the  jury,  on  a  notion  that  the  defendant 
could  not  pay  out  the  money  without  consent  of  both  parties, 
gave  Id.  damages;  which  Avas  now  set  aside,  the  court  saying, 
that  the  rule  of  not  setting  aside  verdicts  for  the  smallness  of  the 
damages  did  not  extend  to  this  case,  where  the  jury  mistook  in 
point  of  law ;  and  the  chief  justice  said  he  knew  no  reason  why 
the  court  should  not  interpose  in  the  other  case. 

1  Ash    V.    Ash,    Comberbach,    357  a  new  trial,  for  the  excessiveness  of 

(1697).  the   damages. 

"Assault,   battery,   and  false   im-  "Holt,    C.    J.:      The    jury    were 

prisonment.       The    Lady    Ash    pre-  very  shy  of  giving  a  reason  of  their 

tended  that  her  daughter,  the  plain-  \erdict,   thinking   they   have   an   ab- 

tiff,    was    troubled    in    mind,    and  solute  despotic  power,  but  I  did  rec- 

brought  an  apothecary  to   give  her  tify  that  mistake,  for  the  jury  are 

physic,    and    they    bound    her,    and  to  try  causes  with  the  assistance  of 

would   have   compelled   her   to   take  the  judges,  and  ought  to  give  rea- 

physic.     She  was  confined  but  about  sons  when  required,  that,  if  they  go 

t'^o    or    three    hours,    and    the    jury  upon   any  mistake,  they  may  be  set 

gave  her  £2,000  damages.  right,      and      a      new      trial      was 

"Sir  Barth.  Shower  moved  for  granted." 


688  NEW   TRIALS.  [ChAP.    VI. 

BARKER  V.  DIXIE. 

2  Strange,  1051.      [1736.] 

In  case  for  a  malicious  prosecution  of  an  indictment  for  felony 
the  jury  found  for  the  plaintiff  and  gave  5s.  damages.  And  upon 
motion  for  a  new  trial  on  account  of  the  smallness  of  damages 
the  court  held  there  could  be  no  new  trial  on  that  account ;  ^ 
for  this  was  not  a  false  verdict,  as  finding  for  the  defendant 
would  be,  and  would  subject  them  to  an  attaint;  whereas  they 
having  found  rightly  for  the  plaintiff,  no  attaint  would  lie.  And 
new  trials  came  in  the  room  only  of  attaints,  as  a  more  expedi- 
tious and  easy  remedy. 


PHILLIPS  V.  LONDON  &  S.  W.  RY.  CO. 
L.  R.  5  Q.  B.  D.,  78.     [C.  A.  1879.] 

This  was  an  appeal  by  the  defendants  from  a  decision  of  the 
Queen's  Bench  Division  directing  a  new  trial.  The  application 
was  made  on  the  ground  of  insufficiency  of  damages  and  mis- 
direction. The  court  granted  a  new  trial  on  the  former  ground 
only. 

The  action  was  brought  by  Dr.  Phillips,  a  physician  in  Gros- 
venor  Square,  against  the  London  and  South  Western  Railway 
Company  to  recover  damages  in  consequence  of  an  alleged  negli- 
gent act  of  their  servants  in  bringing  about  a  collision  on  the 
8th  of  December,  1877,  between  the  train  in  which  Dr.  Phillips 
was  being  carried  to  London,  and  a  light  engine  which  was  on 
the  same  line  of  rail.     *     *     * 

The  jury  gave  the  plaintiff  £7,000.  The  plaintiff  moved  for 
a  new  trial,  which  was  granted  by  the  Queen's  Bench  Division, 
on  the  ground  that  the  amount  of  damages  given  by  the  jury  was 
so  small  as  to  show  that  they  must  have  left  out  of  consideration 
some  of  the  circumstances  which  ought  to  have  been  taken  into 
account.    The  defendants  appealed. 

James,  L.  J.  In  this  case  we  are  of  opinion  that  we  cannot 
on  any  of  the  points  differ  from  the  judgment  of  the  Queen's 
Bench  Division. 

The  first  point,  which  is  a  very  important  one,  relates  to  dis- 

1  See  also  Prichard  v.  Hewitt,  91 
Mo.  547. 


Sec.    1.]  NORTHERN   PAG.    RY.    V.    HERBERT.  689 

sentiiig  from  the  verdict  of  a  jury  upon  a  matter  which,  gen- 
erally speaking,  is  considered  to  be  within  their  exclusive 
province,  that  is  to  say,  the  amount  of  damages.  We  agree  that 
judges  have  no  right  to  overrule  the  verdict  of  a  jury  as  to  the 
amount  of  damages,  merely  because  they  take  a  different  view, 
and  think  that  if  they  had  been  the  jury  they  would  have 
given  more  or  would  have  given  less,  still  the  verdicts  of  juries 
as  to  the  amount  of  damages  are  subject,  and  must,  for  the  sake 
of  justice,  be  subject,  to  the  supervision  of  a  court  of  first  in- 
stance, and  if  necessary  of  a  Court  of  Appeal  in  this  way,  that  is 
to  say,  if  in  the  judgment  of  the  court  the  damages  are  unrea- 
sonably large  or  unreasonably  small  then  the  court  is  bound  to 
send  the  matter  for  reconsideration  by  another  jury.  The 
Queen 's  Bench  Division  came  to  the  conclusion  in  this  case  that 
the  amount  of  the  damages  was  unreasonably  small,  and  for  the 
reasons  which  were  given  by  the  Lord  Chief  Justice,  pointing 
out  certain  topics  which  the  jury  could  not  have  taken  into  con- 
sideration. I  am  of  opinion,  and  I  believe  my  colleagues  are  also 
of  opinion,  for  the  same  reasons  and  upon  the  same  grounds, 
that  the  damages  are  unreasonably  small,  to  what  extent  of 
course  we  must  not  speculate,  and  have  no  business  to  say.  We 
are,  therefore,  of  opinion  that  the  Queen's  Bench  Division  was 
right  in  directing  a  new  trial.     *     *     * 

Appeal  dismissed. 


NORTHERN  PAC.  RY.  v.  HERBERT. 

116  U.  S.  642.     [1885.] 

Tbe  plaintiff  sued  for  the  loss  of  his  leg  which  was  crushed 
between  the  bumpers. 

There  Avas  a  verdict  in  favor  of  the  plaintiff  for  $25,000.  A 
motion  for  a  new  trial  was  made  on  various  grounds;  among 
others,  that  the  damages  were  excessive.  The  court  ordered 
that  a  new  trial  be  granted  unless  he  remitted  $15,000  of  the 
verdict,  and  in  case  he  did  so  that  the  motion  be  denied.  He 
remitted  the  amount,  and  judgment  was  entered  in  his  favor  for 
the  balance,  and  costs  of  suit,  which  the  Supreme  Court  of  the 
Territorv  affinned.     The  defendant  then  sued  out  this  writ  of 


error. 


* 


H.  T.  P.— 4  4 


690 


NEW    TRIALS. 


[Chap.  VI. 


Mr.  Justice  Field:     *     *     * 

2.  The  exaction,  as  a  condition  of  refusing  a  new  trial,  that 
the  plaintiff  should  remit  a  portion  of  the  amount  awarded  hy 
the  verdict  was  a  matter  within  the  discretion  of  the  court.  It 
held  that  the  amount  found  was  excessive,  but  that  no  error  had 
been  committed  on  the  trial.  In  requiring  the  remission  of 
what  was  deemed  excessive  it  did  nothing  more  than  require  the 
relinquishment  of  so  much  of  the  damages  as,  in  its  opinion,  the 
jury  had  improperly  awarded.  The  corrected  verdict  could, 
therefore,  be  properly  allowed  to  stand.  ^  Hay  den  v.  The  Flor- 
ence Sewing  Machine  Co.,  54  N.  Y.  221,  225 ;  Doyle  v.  Dixon,  97 
Mass.  208,  213 ;  Blunt  v.  Little,  3  Mason,  102,  107.     *     *     * 


STAFFORD  v.  PAWTUCKET  HAIR-CLOTH  CO. 


2  Clifford,  82.     [1862.] 


Action  to  recover  damages  for  the  infringement  of  a  patent 
on  an  improvement  in  hair-cloth  looms.  Defendants  pleaded  the 
general  issue,  and  gave  notice  that  they  should  prove  the  com- 
plainant not  to  be  the  original  and  first  inventor  of  the  improve- 
ment. 

Pitman,  district  judge,  presided  at  the  trial,  which  was  had 
at  the  November  Term,  1860,  and  charged  the  jury.  Verdict  for 
complainant  for  the  sum  of  $2,500.     *     *     * 

Clifford,  J.  A  new  trial  is  asked,  among  other  reasons,  be- 
cause the  damages  awarded  by  the  jury  in  the  cause  are  exces- 
sive, and  indicate  a  total  misapprehension  of  the  case,  and  the 
evidence  in  this  regard,  as  shown  by  the  report  of  the  evidence. 

In  substance  and  effect,  the  charge  of  the  court  directed  the 
jury  to  confine  their  attention  to  one  machine,  and  they  were 
expressly  told  that  the  court  could  see  no  particular  proof  of 
actual  damages.  Looking  at  the  whole  case,  it  is  quite  clear 
that  the  damages  are  greatly  excessive,  and  plainly  the  finding 
was  without  sufficient  evidence  to  justify  it,  and  contrary  to  the 
charge  of  the  court.    Such  errors  may  in  many  cases  and  under 


1  Accord,  Ey.  v.  Hall,  232  U.  S. 
94;  Chitty  v.  Ey.,  166  Mo.  435  (re- 
viewing Missouri   cases). 


See  also  Land  Co.  v.  Mann.  130 
U.  S.  69,  reviewing  large  number  of 
the  American  cases. 


Sec.  1.]  WATT  V.  watt.  691 

most  circumstances  be  obviated  by  remitting  the  amount  of  the 
excess,  but  where  the  circumstances  clearly  indicate  that  the 
jury  were  influenced  by  prejudice  or  by  a  reckless  disregard  of 
the  instructions  of  the  court,  that  remedy  cannot  be  allowed. 
Where  such  motives  or  influences  appear  to  have  operated,  the 
verdict  must  be  rejected,  because  the  efi'ect  is  to  cast  suspicion 
upon  the  conduct  of  the  jury  and  their  entire  finding. 

After  careful  consideration  of  the  evidence  and  the  circum- 
stances of  the  trial,  we  are  constrained  to  come  to  the  conclu- 
sion that  the  case  falls  within  the  latter  rule.  Parties  have  a 
right  to  an  impartial  trial,  and  where  the  finding  of  the  jury 
is  so  excessive,  ard  so  wholly  opposite  to  the  charge  of  the  court, 
it  is  not  possible  to  say  that  the  requirements  of  the  law  in  that 
behalf  have  been  fulfilled.^ 

In  view  of  the  whole  case,  we  are  of  the  opinion  that  the  ver- 
dict must  be  set  aside  and  a 

New  trial  granted. 


WATT  V.  WATT. 
L.  R.  Appeal  Cases  [1905],  115. 

The  respondent  brought  an  action  against  the  appellant  for 
libel  which  was  tried  before  Gainsford  Bruce,  J.,  and  a  special 
jury.  The  defendant  did  not  justify ;  the  jury  found  a  verdict 
for  the  plaintiff  for  £5,000,  and  the  learned  judge  entered  judg- 
ment for  her  for  that  sum.  On  appeal  by  the  defendant  the 
Court  of  Appeal  (Collins,  M.  R.,  Mathew  and  Cozens-Hardy, 
L.  JJ.),  considering  that  the  damages  awarded  were  excessive 
and  unreasonable,  made  an  order  for  a  new  trial  unless  the 
plaintiff  consented  to  the  damages  being  reduced  to  £1,500.  The 
plaintiff  consented,  and  the  judgment  of  Gainsford  Bruce,  J., 
was  amended  accordingly.    Hence  this  appeal.     *     *     * 

Earl  of  Halsbury,  L.  C.  My  Lords,  in  this  case  I  think  there 
ought  to  be  a  new  trial.  I  say  this  quite  independently  of  what 
I  have  to  say  hereafter  upon  the  subject  of  the  jurisdiction  of 
the  court  to  direct  the  amount  of  the  damages  without  the  con- 
sent of  both  parties  to  the  litigation.    I  think  the  trial  itself  was 

iBut  see  Heimlich  v.  Tabor,  123 
Wis.  565  (an  extreme  case). 


692  NEW   TRIALS.  [ChAP.    VI. 

most  unsatisfactory,  and  the  verdict  ought  not  to  be  permitted 
to  stand.     *     *     * 

I  am,  however,  further  of  opinion  that  the  court  has  no  juris- 
diction to  fix  the  amount  of  damages  without  the  consent  of 
both  the  parties.  This  question  was  raised  in  Belt  v.  Lawes  (12 
Q.  B.  D.  356),  and  though  it  was  not  necessary  for  the  decision 
in  that  case,  a  weighty  opinion  was  given  by  my  noble  and 
learned  friend  Lord  Lindley,  which  has  made  me  hesitate  before 
I  come  to  a  conclusion  opposed  to  his. 

There  has  been,  doubtless,  some  confusion  in  discussing  the 
question  of  damages  arising  from  the  mode  in  which  our  law 
has  grown  up.  The  court  itself  has  the  right,  and  has  exercised 
it  in  various  ways  when  the  question  has  arisen  upon  demurrer 
or  default.  It  may  send  it,  as  has  been  commonly  the  practice, 
to  the  sheriff  to  assess;  but  it  has  the  right,  which  has  always 
been  asserted,  to  decide  that  question  for  itself — probably  be- 
cause that  question  is  often  a  question  of  law,  where  the  dam- 
ages are  fixed  b.y  law,  and  where  it  was  mere  matter  of  law  it 
was  established  in  very  early  times  (10  Hen.  6)  that  the  court 
itself  could  even  increase  the  damages ;  and  so  the  learned  editor 
of  Reeves '  History  of  the  Common  Law  says :  ' '  There  was  always 
this  distinction  between  trial  by  jury  and  mere  inquisition  or 
inquiry  by  a  jury  to  assess  damages — that,  in  the  latter  case  the, 
inquisition  was  only  to  inform  the  mind  of  the  court  and  it  was 
at  their  discretion  whether  they  would  award  judgment  for_the 
amount  found  by  the  jury,  whereas  upon  a  trial  they  had  no 
jurisdiction  to  interfere  as  to  the  amount  of  damages  in  cases 
of  tort;"  but  where  the  jury  had  found  larger  damages  than 
were  laid  in  the  declaration  the  court  held  they  were  entitled  to 
restrict  them  to  the  amount  claimed  (2  Hen.  6,  c.  7).  The 
courts,  however,  adopted  the  somewhat  unconstitutional  pro- 
ceeding of  refusing  to  give  the  plaintiff  judgment  unless  he 
would  consent  to  reduce  his  claim  to  what  ought  to  be  considered 
reasonable,  and  hence  the  practice  and  the  impression  that  the 
court,  with  the  consent  of  the  plaintiff,  could  reduce  the  amount 
of  damages. 

My  Lords,  I  am  unable  after  a  very  anxious  examination  of 
the  earlier  authorities  to  assent  to  the  legality  of  this  proceed- 
ing unless  by  the  assent  of  both  parties.  The  very  indirect 
method  of  the  proceeding  that  they  would  not  give  the  plaintiff 
judgment  shows  that  they  could  not  do  it  without  the  plaintiff's 


Sec.  1.]  ANONYMOUS.  693 

assent;  and  one  can  well  understand  that  the  defendant  was 
not  very  likely  to  refuse  his  assent  to  a  proceeding  intended  for 
his  benefit.  The  theory  of  all  the  cases  seems  to  me  to  be  that 
the  right  of  the  court  to  interfere  with  a  jury's  verdict  was  only 
to  be  by  the  assent  of  both  parties. 

Assume  it  to  be  the  constitutional  view  that  a  person  can  only 
have  damages  assessed  against  him  for  a  tort,  what  right  has  a 
court  to  intervene  and  say  that  damages  which  in  its  judgment 
are  appropriate  shall  be  the  amount  assessed  against  him?  The 
only  judgment  by  a  jury  is  one  which  the  court  itself  by  the 
hypothesis  says  is  unreasonable  and  excessive.  Has  not  the  de- 
fendant a  right  to  say,  "I  refuse  to  have  judgment  assessed 
against  me  by  a  court  ?  The  law  gives  me  a  right  to  a  jury,  and 
how  does  the  fact  that  a  jury  have  already  found  a  verdict 
against  me,  which  you  decide  cannot  be  allowed  to  stand  be- 
cause it  is  unreasonable  and  excessive,  displace  my  right  to 
have  the  verdict  of  a  jury  upon  the  question!" 

Hesitating,  as  I  do,  to  differ  from  the  opinion  expressed  by 
my  noble  and  learned  friend  Lord  Lindley,  I  have  come  to  the 
conclusion  that  there  is  no  power  in  the  court  to  alter  the  ver- 
dict except  by  ordering  a  new  trial;  and  for  these  reasons  I 
move  your  Lordships  that  the  judgment  appealed  from  be  re- 
versed and  a  new  trial  had. 

Order  of  the  Court  of  Appeal  reversed  and  a  new  trial 
ordered. 


ANONYMOUS. 

1  KeUe,  861.     [1665.] 

Ex  motiane  Recordatoris  Wild,  the  court  on  certificate  of  a 
judge,  that  verdict  was  given  contrary  to  evidence,  would  not 
allow  the  sheriff  should  bring  in  the  book  of  freeholders  to  the 
secondary,  for  the  ill  example ;  but  ordered  the  sheriff  should 
return  a  good  jur^^  in  the  new  trial.  Hyde,  Chief  Justice,  con- 
ceived jurors  ought  to  be  fined  if  they  would  go  against  the 
Hare  (?)  and  direction,  take  bit  in  mouth  and  go  headstrong 
against  the  court ;  and  said,  that  by  the  grace  of  God  he  would 
have  it  tried,  seeing  the  attaint  is  now  fruitless. 


694  NEW   TRIALS.  [ChAP,    VI. 

MARTYN  V.  JACKSON. 

3  Kehle,  398.     [1675.] 

Ex  motione  Sytherfield  for  a  new  trial  on  parol  affirmation 
of  Hale,  Chief  Justice,  to  Rainsford,  Justice,  that  the  trial  was 
against  evidence.  Twisden  and  Wild  refused  to  grant  it,  the 
jury  being  judges  of  the  fact,  though  verdict  be  against  evi- 
dence, it 's  not  to  be  set  aside  without  a  new  law ;  ^  contra  by 
Rainsford,  2  Bulstr.  222,  24.  Juries  are  wilful  enough,  and 
denying  new  trial  here,  will  but  send  parties  into  the  chancery, 
yet  new  trial  was  denied. 


BERKS  V.  MASON. 

Sayer,  264.     [1756.] 

Upon  a  rule  to  show  cause,  why  a  new  trial  should  not  be 
had ;  Ryder,  Ch.  J.,  before  whom  the  cause  was  tried,  reported ; 
that  there  was  evidence  on  both  sides ;  but  that  the  evidence,  for 
the  party  in  whose  favor  the  verdict  is  found,  was  so  very  slight, 
that  the  jury  ought  not,  in  his  opinion,  to  have  regarded  it; 
and  that  the  evidence  for  the  other  party  was  very  strong;  and 
he  concluded  with  saying,  that  he  was  dissatisfied  with  the  ver- 
dict. 

At  a  former  day,  when  this  rule  came  on,  it  was  said  on  show- 
ing cause ;  that  if  there  be  evidence  on  both  sides,  a  new  trial 
ought  not  to  be  granted,  and  the  case  of  Smith  v.  Huggins, 
Mich.  14  G.  2,  in  this  court  was  relied  upon ;  wherein  a  new  trial 
was  refused,  although  Lee,  Ch.  J.,  reported;  that  the  evidence 

1  Ashley    v.     Ashley,     2     Strange,  ' '  Et    per    curiam,    as    there    was 

1142    (1740).  evidence    on    the    part    of    the    de- 

"The  judge  who  tried  this  cause  fendant,    the    jury    are    the    proper 

(which  was  upon  a  promissory  note  judges    which    scale    preponderates, 

for  £5,000  which  the  defendant  in-  It   cannot  be   said  to  be   a   verdict 

sisted  was  forged)  certified  that  the  against   evidence,   and   therefore   we 

weight  of  the  evidence  was  with  the  will  grant  no  new  trial." 
plaintiff,   and   he   thought   the   jury 
would    find    for    the    plaintiff;    but 
they  found  for  the  defendant. 


I 


Sec.    1.]  BRIGHT   V.    EYNON,  695 

for  the  plaintiff,  in  whose  favor  the  verdict  was  found,  was 
slight,  and  that  he  had  summed  up  strongly  for  the  defendant ; 
the  opinion  of  the  court  being,  that  as  there  was  evidence  on  both 
sides,  a  new  trial  ought  not  to  be  granted. 

The  matter  was  at  that  day  ordered  to  stand  over,  for  the 
chief  justice  to  look  into  his  notes,  in  order  to  make  a  fuller 
report. 

After  the  chief  justice  had  made  the  above  report,  it  was 
said  in  support  of  the  rule ;  that  if  the  judge  declare  himself  to 
be  dissatisfied  with  the  verdict,  it  is  the  constant  practice  to 
grant  a  new  trial ;  and  nothing  was  said  by  the  council  who  had 
shown  cause  at  the  former  day. 

The  rule  was  made  absolute. 


BRIGHT  V.  EYNON. 

1  Burrow,  390.      [1757.] 

The  plaintiff's  counsel  moved  for  a  new  trial,  upon  payment 
of  costs,  and  obtained  a  rule  "to  show  cause  why  this  verdict 
should  not  be  set  aside  upon  payment  of  costs." 

Lord  Mansfield  said  that  he  did  not  choose,  in  any  cause  tried 
before  him,  to  conclude  the  matter  by  a  short  report,  "that  he 
was  satisfied,  or  dissatisfied,  with  the  verdict."  He  would  state 
the  case  particularly  to  the  court;  and  reserve  declaring  his 
opinion  of  the  verdict  (which  he  had  not  yet  intimated,  either 
at  the  trial  or  since)  till  he  had  heard  the  counsel  on  both  sides. 

This  was  an  action  upon  the  case,  brought  by  the  plaintiff  as 
executor  of  Hannah  Crisp  widow,  deceased,  against  the  de- 
fendant, upon  a  promissory  note  in  the  following  words  (all 
of  the  defendant's  own  writing),  which  was  proved  and  read: 
"I  acknowledge  to  have  borrowed  of  Mrs.  Hannah  Crisp,  this 
29th  day  of  September,  1753,  the  sum  of  £60,  for  whieli  I 
promise  to  pay  £5  per  cent  per  annum,  and  to  be  accountable 
for  the  whole  six  months  after  notice  given  for  that  purpose. 
John  Eynon,  September  29,  1753." 

The  defendant  set  up  a  discharge  by  a  writing  in  the  following 
words:  "I  promise  unto  John  Eynon,  that,  in  consideration 
of  his  paying  unto  me  interest  for  £60  he  has  of  mine,  during 


696 


NEW    TRIALS. 


[Chap.  VI. 


my  life,  after  the  rate  of  £5  per  cent  per  annum,  that  then  the 
said  £60,  at  my  decease,  shall  be  his,  and  his  note  for  the  same 
shall  be  void  and  of  none  effect.  Witness  my  hand,  this  10th 
day  of  October,  1753,  Hannah  Crisp."  The  body  was  all  his 
oM'n  hand;  but  he  called  two  witnesses  who  said  they  believed 
the  name  subscribed  to  be  the  hand  of  the  testatrix;  but  their 
knowledge  of  her  hand  was  very  slight,  one  of  them  having  only 
seen  her  sign  a  receipt. 

He  alleged  that  she  gave  this  discharge,  in  consideration  of 
a  marriage  between  him  and  Rebeccah  Bright,  his  now  wife 
(sister  to  the  plaintiff). 

He  produced  a  will,  in  his  own  custody,  bearing  date  the  11th 
of  August,  1753,  by  which  the  testatrix  had  made  the  said 
Rebecca  Bright  her  executrix  and  residuary  legatee. 

This  marriage  was  not  until  May,  1754 ;  the  testatrix  died  in 
April,  1756. 

It  came  out,  upon  his  own  evidence,  that  the  testatrix  was  not 
worth  £200,  and  that  she  paid  5s.  a  week,  or  at  the  rate  of  £13 
a  year,  for  her  board.  He  could  make  no  proof  of  the  con- 
sideration alleged;  the  farthest  that  any  of  his  witnesses  went 
was  to  say  ' '  that  the  testatrix  seemed  to  approve  the  match. ' ' 

The  plaintiff,  in  reply,  insisted  "that  the  signature  was 
forged. ' '  Josias  Bright  swore  that  the  defendant 's  wife  did  not 
know  the  defendant  had  borrowed  any  money  from  the  testatrix 
till  after  she  was  married.  After  she  was  acquainted  with  it  she 
pressed  him  to  pay  the  money,  out  of  a  legacy  of  £150  from  one 
Sarah  Hart  which  he  received,  for  the  testatrix  might  call  it  in. 
The  defendant  bid  her  not  to  be  uneasy  "for  I  must  have  six 
months  notice." 

Several  witnesses  proved  that  Hannah  Crisp,  about  Michael- 
mas, 1754,  talked  of  calling  in  the  money  upon  this  note,  and 
lending  it  to  other  persons. 

That  in  1755  and  1756  she  ordered  letters  to  be  wrote  to  the 
defendant  for  the  money.  When  she  gave  these  orders  she  pro- 
duced the  defendant's  note  and  said  "the  interest  was  not  enough 
to  maintain  her." 

It  was  proved  that  the  defendant  entered  a  caveat  at  Doctor's 
Commons  in  April,  1756 ;  and  when  he  found  she  had  made  a 
will  in  favor  of  the  plaintiff,  and  consequently  revoked  that 
which  was  in  favor  of  his  wife,  he  was  very  warm  and  mentioned 


Sec.    1.]  BRIGHT   V.    EYNON.  697 

a  note  from  him  to  her ;  and  declared  he  would  not  withdraw  his 
caveat  unless  it  was  given  up. 

The  plaintiff  examined  no  witness  to  say  the  signature  was 
not  her  hand.  By  way  of  rejoinder  they  called  witnesses  to  the 
defendant's  character,  who  gave  him  a  good  one. 

The  defendant  instructed  his  counsel  to  say  that  he  always 
understood  the  gift  to  be  revocable  by  Hannah  Crisp  during  her 
life,  but  if  she  did  not  revoke  or  call  in  her  money  during  her 
life  then  the  debt  was  to  be  discharged. 

The  principal  question  made  at  the  trial  was  "whether  this 
latter  note  was  forged  or  not."  And,  as  to  that,  the  two  wit- 
nesses who  believed  it  to  be  her  hand,  were  not  opposed  by  any 
witnesses  to  the  contrary ;  the  reason  given  was  that  the  plaintiff 
had  no  opportunity  of  getting  it  inspected. 

His  lordship  said  he  left  two  questions  to  the  jury:  (1st.) 
' '  Whether  the  name  of  the  testatrix  was  forged. "  ( 2d. )  If  they 
took  it  upon  the  evidence  laid  before  them  to  be  her  hand,  then 
"whether  it  was  not  obtained  by  fraud,  and  without  her  know- 
ing the  contents  and  et¥ect  of  the  writing  she  signed." 
The  jury  found  for  the  defendant. 

Lord  Mansfield  intimated  nothing,  then,  as  to  his  own  opinion 
of  the  case ;  and  professedly  avoided  doing  it  now,  till  he  should 
have  heard  the  counsel. 

They  were  accordingly  lieard.  And  they  who  showed  cause 
against  the  rule  went  very  much  at  large  into  the  propriety  and 
rise  of  granting  new  trials.  They  urged  that  a  verdict  ought 
to  be  conclusive  where  evidence  of  any  sort  was  given  on  both 
sides.  That  the  forgery  here  was  the  only  question,  if  the 
plaintiff  objected  fraud  and  imposition  he  must  go  to  a  court 
of  equity  for  relief. 

Lord  Mansfield.  Trials  by  jury,  in  civil  causes,  could  not 
subsist  now  without  a  power,  somewhere,  to  grant  new  trials. 

If  an  erroneous  judgment  be  given  in  point  of  law  there  are 
many  ways  to  review  and  set  it  right. 

Where  a  court  judges  of  fact  upon  depositions  in  writing  their 
sentence  or  decree  may,  [in]  many  ways,  be  reviewed  and  set 
right. 

But  a  general  verdict  can  only  be  set  right  by  a  new  trial, 
which  is  no  more  than  having  the  cause  more  deliberately  con- 
sidered by  another  jury;  when  there  is  a  reasonable  doubt,  or 
perhaps  a  certainty,  that  justice  has  not  been  done. 


698 


NEW   TRIALS. 


[Chap.  YI. 


The  writ  of  attaint  is  now  a  mere  sound  in  every  case ;  in 
many  it  does  not  pretend  to  be  a  remedy. 

There  are  numberless  causes  of  false  verdicts,  without  cor- 
ruption or  bad  intention  of  the  jurors.  They  may  have  heard 
too  much  of  the  matter  before  the  trial  and  imbibed  prejudices 
without  knowing  it.  The  cause  may  be  intricate ;  the  examination 
may  be  so  long  as  to  distract  and  confound  their  attention. 

Most  general  verdicts  include  legal  consequences,  as  well  as 
propositions  of  fact ;  in  drawing  these  consequences  the  jury  may 
mistake  and  infer  directly  contrary  to  law. 

The  parties  may  be  surprised,  by  a  case  falsely  made  at  the 
trial,  which  they  had  no  reason  to  expect,  and  therefore  could 
not  come  prepared  to  answer. 

If  unjust  verdicts,  obtained  under  these  and  a  thousand  like 
circumstances,  were  to  be  conclusive  forever,  the  determination  of 
civil  property,  in  this  method  of  trial,  would  be  very  precarious 
and  unsatisfactory.  It  is  absolutely  necessary  to  justice  that 
there  should,  upon  many  occasions,  be  opportunities  of  recon- 
sidering the  cause  by  a  new  trial.  And  it  is  done  in  a  way  very 
favorable  to  the  parties  for  whom  the  wrong  verdict  is  given ;  it 
is,  upon  payments  of  costs.  Whereas  in  other  cases  where  a 
wrong  judgment  is  reversed,  costs  are  paid  as  if  the  right  judg- 
ment had  been  given  in  the  first  instance. 

It  is  not  true  "that  no  new  trials  were  granted  before  1655," 
as  has  been  said  from  Style  466.     *     *     * 

The  reason  why  this  matter  cannot  be  traced  further  back  is 
"that  the  old  report  books  do  not  give  any  accounts  of  deter- 
minations made  by  the  court  upon  motions. ' ' 

Indeed,  for  a  good  while  after  this  time  the  granting  of  new 
trials  was  holden  to  a  degree  of  strictness,  so  intolerable,  that  it 
drove  the  parties  into  a  court  of  equity,  to  have,  in  effect,  a  new 
trial  at  law  of  a  mere  legal  question;  because  the  verdict,  in 
justice,  under  all  the  circumstances,  ought  not  to  conclude ;  and 
many  bills  have  been  retained  upon  this  ground,  and  the  question 
tried  over  again  at  law  under  the  direction  of  a  court  of  equity. 
And,  therefore,  of  late  years,  the  courts  of  law  have  gone  more 
liberally  into  the  granting  of  new  trials,  according  to  the  circum- 
stances of  the  respective  cases.  And  the  rule  laid  down  by  Lord 
Parker,  in  the  case  of  the  Queen  against  the  Corporation  of 
Helston,  H.  12  Ann.  B.  R.,  seems  to  be  the  best  general  rule 
that  can  be  laid  down  upon  this  subject,  viz.,  ' '  doing  justice  to 


Sec.    1.]  BRIGHT    V.    EYNON.  699 

the  party,"  or,  in  other  words,  "attaining  the  justice  of  the 
case. ' ' 

The  reasons  for  granting  a  new  trial  must  be  collected  from 
the  whole  evidence,  and  from  the  nature  of  the  case  considered 
under  all  its  circumstances. 

This  power  may  be  exercised  at  much  less  expense  of  time  and 
money,  therefore  more  beneficially  for  the  subject,  by  the  court 
of  common  law  where  the  cause  has  been  tried. 

Of  late  years,  new  trials  have  been  granted  not  only  after 
trials  at  nisi  prius,  but  also  after  trials  at  bar.  And  it  is  at 
least  equally  reasonable  to  do  it  after  trials  at  bar  as  after 
trials  at  nisi  prius  (if  the  justice  of  the  case  demands  it)  ;  or, 
indeed,  rather  more  so,  as  the  latter  must  be  done  upon  what 
could  have  actually  and  personally  appeared  to  a  single  judge 
only,  whereas  the  former  is  grounded  upon  what  must  have 
manifestly  and  fully  appeared  to  the  whole  court. 

I  come  now  to  the  present  verdict,  and  should  be  sorry  that 
the  question  depended  upon  my  being  satisfied,  or  dissatisfied; 
and  therefore  I  have  stated  the  whole. 

If  the  matter  in  dispute  was  of  great  value,  I  will  not  say 
that  all  the  suspicious  circumstances  might  not  be  a  ground  for 
a  new  trial;  to  give  the  plaintiff  an  opportunity  of  getting  the 
instrument  inspected  by  persons  acquainted  with  her  hand; 
.  though  I  think  upon  the  evidence  laid  before  the  jury  the  verdict 
in  that  respect  was  right. 

What  I  go  upon  is  the  apparent  manifest  fraud  and  imposition 
in  obtaining  the  discharge  from  the  testatrix,  if  she  really 
signed  it. 

Fraud  or  covin  may,  in  judgment  of  the  law,  avoid  every  kind 
of  act;  many  instances  are  put  in  Termor's  case,  3  Co.  77. 

What  circumstances  and  facts  amount  to  such  fraud  "or 
covin"  is  always  a  question  of  law.  Courts  of  equity,  and 
courts  of  law  have  a  concurrent  jurisdiction  to  suppress  and 
relieve  against  fraud.  But  the  interposition  of  the  former  is 
often  necessary  for  the  better  investigating  truth,  and  to  give 
more  complete  redress. 

The  writing,  upon  the  face  of  it,  speaks  imposition.  It  pur- 
ports being  for  consideration.  She  releases  the  principal  in 
consideration  of  £5  per  cent  during  her  life,  which  is  only  legal 
interest,  and  the  precise  rate  he  was  obliged  to  pay  by  his  note. 
The  defendant  has  set  up  another  consideration,  not  expressed, 


700 


NEW   TRIALS. 


[Chap.  VI. 


which  is  not  only  not  proved  by  him,  but  disproved  by  the 
evidence  on  both  sides. 

He  now  contends,  and  his  counsel  have  argued,  "that  it  was 
intended  to  be  revocable  by  her  during  her  life ;  and  therefore 
was  only  in  the  nature  of  a  legacy."  That  power  "to  revoke" 
is  omitted ;  the  writing,  all  of  his  own  hand,  and  kept  in  his  own 
custody;  and  if  it  was  in  the  nature  of  a  legacy  it  is  revoked 
by  the  subsequent  will. 

The  testatrix  never  imagined  she  had  stripped  herself  of  this 
money;  in  her  circumstances  it  would  have  been  madness.  The 
defendant,  during  her  life,  did  not  dare  to  say,  even  to  his  own 
wife,  "that  the  testatrix  had  given  him  this  money." 

He  did  not  dare  to  claim  it,  immediately,  after  her  death ;  but 
would  have  compounded,  by  withdrawing  his  caveat,  to  have  got 
his  note  delivered  up.  No  answer  was  attempted,  by  proof,  to 
the  apparent  imposition.  Upon  his  own  case  stated  by  himself, 
and  the  evidence  on  both  sides,  the  transaction  to  get  her  hand 
to  this  writing  must  have  been  fraudulent;  and  if  it  be  so  the 
law  says  "he  shall  not  avail  himself  of  it." 

The  attention  of  the  jury  was  artfully  drawn  to  the  heinous 
charge  of  forgery  only.  And  I  left  the  question  of  fraud  to 
them,  without  any  express  direction  "that  the  circumstances 
spoke  fraud  apparent."  The  same  jury  might,  upon  recon- 
sideration, find  a  different  verdict.  I  dare  say  they  meant  to 
do  right. 

But  the  merits  of  the  case  appearing  to  me  in  this  light,  I 
am  clearly  of  opinion  that  there  ought  to  be  a  new  trial. 

These  are  my  sentiments;  my  brothers  will  judge  whether  I 
am  right  or  not. 

IMr.  Justice  Denison  concurred  in  them. 

He  added  that  it  would  be  difficult  perhaps  to  fix  an  absolutely 
general  rule  about  granting  new  trials,  without  making  so  many 
exceptions  to  it  as  might  rather  tend  to  darken  the  matter  than 
to  explain  it ;  but  the  granting  a  new  trial,  or  refusing  it,  must 
depend  upon  the  legal  discretion  of  the  court,  guided  by  the 
nature  and  circumstances  of  the  particular  case,  and  directed 
with  a  view  to  the  attainment  of  justice. 

In  the  present  case  he  said  it  appeared  to  him  ' '  that  the  testa- 
trix, Mrs.  Crisp,  had  been  imposed  upon."  And  he  held  "that 
fraud  was  sufficient  to  invalidate  this  her  defeasance  (the  subse- 
quent note  of  discharge  signed  by  her)  even  in  a  court  of  com- 


Sec.    1.]  METROPOLITAN   RY.    V.    WRIGHT.  701 

moil  law."  For  proof  of  which  he  cited  Throughgood 's  case, 
2  Co.  9,  where  it  was  holden,  "that  the  deed  of  an  unlettered  lay- 
man, into  the  execution  whereof  he  is  deceived,  by  its  being 
wrong  read  to  him,  or  falsely  explained  to  him  (though  by  a 
stranger  to  the  party  to  whom  the  deed  is  made),  shall  not  bind 
the  unlettered  person  who  made  it. ' ' 

Mr.  Justice  Foster  agreed  to  the  propriety  of  what  had  been 
said,  as  to  such  cases  in  which  the  juries  give  verdicts  against 
evidence,  and  even  as  to  cases  where  there  may  be  a  contrariety 
of  evidence,  but  the  evidence,  upon  the  whole,  in  point  of  proba- 
bility, greatly  preponderates  against  the  verdict  (which,  depend- 
ing on  a  variety  of  circumstances,  is  matter  of  legal  discretion, 
and  cannot  be  brought  under  any  general  rule)  ;  but  in  all  cases 
where  the  evidence  is  nearly  in  aequilihrio,  he  declared  that  he 
should  always  think  himself  bound  to  have  regard  to  the  finding 
of  the  jury;  for  '^ad  quaestionem  facti  respondent  juratores." 
In  such  a  case  it  is  not  the  province  of  the  judge  to  determine ;  it 
ought  to  be  left  to  the  jury.     *     *     * 


METROPOLITAN  RY.  v.  WRIGHT. 
L.E.  11  Appeal  Cases,  152.     [1886.] 

Appeal  from  a  decision  of  the  Court  of  Appeal. 

The  respondent,  a  passenger  on  the  appellants'  line,  stepped 
out  of  a  train  at  King's  Cross  Station  and  was  by  the  motion  of 
the  train  thrown  on  to  the  platform,  sustaining  injuries  in 
respect  of  which  she  brought  this  action.  At  the  trial  before 
HuDDLESTON,  B.,  and  a  special  jury  in  July,  1884,  the  plaintiff's 
case  was  that  the  company's  servants  were  guilty  of  negligence 
in  not  looking  out  and  not  answering  her  calls  for  assistance  and 
in  allowing  the  train  to  move  on  after  she  had  begun  to  alight. 
The  defendants'  case  was  that  there  was  no  negligence  on  their 
part ;  that  the  train  had  begun  to  move  before  the  plaintiff  had 
begun  to  alight,  and  that  the  accident  was  caused  or  contributed 
to  by  her  negligence.  Upon  these  points  there  was  conflicting 
evidence ;  the  plaintiff  being  called  on  the  one  side,  and  several 
of  the  company's  servants  on  the  other. 

The  jury  found  a  verdict  for  the  plaintiff  for  £300.     The 


702 


NEW   TRIALS, 


[Chap.  VL 


Divisional  Court  (Lord  Colerdige,  C.  J.,  and  Stephen,  J.) 
ordered  a  new  trial  on  the  ground  that  the  verdict  was  against 
the  weight  of  the  evidence.  The  Court  of  Appeal  (Earl  of 
Selborne,  L.  C;  Brett,  M.  E.,  and  Lindley,  L.  J.)  on  the 
7th  of  March,  1885,  reversed  this  decision  and  ordered  the  ver- 
dict to  stand.  In  the  course  of  giving  judgment  the  following 
observation  were  made : 

Earl  of  Selborne,  L.  C.  We  all  think  that  there  are  not  suffi- 
cient grounds  for  a  new  trial  in  this  case.  As  the  verdict  was 
aot  perverse  or  unreasonable,  looking  to  the  evidence  given,  it 
does  not  seem  to  us  to  be  a  case  in  which  the  decision  of  the 
jury,  who  are  the  proper  judges  of  such  questions,  should  be 
interfered  with.  The  damages  are,  I  think,  plainly  not  excessive, 
if  the  verdict  is  right,  or  if  the  verdict  was  one  which  the  jury, 
in  the  exercise  of  their  proper  judgment,  w^ere  entitled  to  give. 
In  many  cases  the  principles  on  which  new  trials  should  be 
granted  on  the  ground  of  difference  of  opinion  which  may  exist 
as  to  the  effect  of  the  evidence  have  been  considered,  both  in  the 
House  of  Lords  and  in  the  lower  courts,  and  I  have  always 
understood  that  it  is  not  enough  that  the  judge,  who  tried  the 
ease,  might  have  come  to  a  different  conclusion  on  the  evidence 
than  the  jury,  or  that  the  judges,  in  the  court  where  the  new 
trial  is  moved  for,  might  have  come  to  a  different  conclusion,  but 
there  must  be  such  a  preponderance  of  evidence,  assuming  there 
is  evidence  on  both  sides  to  go  to  the  jury,  as  to  make  it  unrea- 
sonable, and  almost  perverse,  that  the  jury  when  instructed  and 
assisted  properly  by  the  judge  should  return  such  a  verdict.  If 
I  am  at  all  right  in  that  view,  then  I  may  say  I  cannot  come  to 
the  conclusion  that  this  is  a  verdict  which  upon  the  evidence 
before  them  the  jury  were  not  well  entitled  to  find. 

Lord  Fitzgerald.  My  lords,  I  concur  in  the  concliision  an- 
nounced by  the  noble  and  learned  lord  on  the  woolsack,  and  I 
should  not  add  a  word  but  that  it  is  very  desirable  that  we  should 
understand  the  grounds  upon  which  the  courts  exercise  a  control 
over  the  verdict  of  a  jury  once  found.  In  this  case  there  was 
evidence  given  at  the  trial  on  both  sides,  and  on  all  the  issues, 
proper  to  be  submitted  to  and  considered  by  the  jury.  Such 
appears  to  have  been  the  opinion  of  the  Divisional  Court,  and 
it  was  clearly  that  of  the  Court  of  Appeal.  The  judge  who 
presided  at  the  trial  could  not  properly  have  withdrawn  the  case 
from  the  jury.     The  jury  gave  their  verdict  for  the  plaintiff. 


Sec.    1.]  METROPOLITAN    RY.    V.    WRIGHT.  703 

The  judgment  of  the  noble  and  learned  earl  who  presided  in 
the  Court  of  Appeal  imports  that  a  verdict  once  found  is  not 
to  be  set  aside  unless  it  appears  to  be  a  verdict  perverse  or  al- 
most perverse.  If  my  recollection  does  not  mislead  me,  we  have 
departed  in  this  House,  in  several  instances,  from  the  old  rule 
which  introduced  the  element  of  "perversity,"  and  have  substi- 
tuted for  it  that  the  verdict  should  not  be  disturbed  unless  it 
appeared  to  be  not  only  unsatisfactory,  but  unreasonable  and 
unjust.  The  question,  then,  for  your  lordships'  consideration 
is  whether  the  evidence  so  preponderates  against  the  verdict  as 
to  show  that  it  was  unreasonable  and  unjust.  I  am  of  opinion 
that  the  appellants,  upon  whom  the  omts  lies,  have  failed  to 
establish  that  this  verdict  was  unreasonable  or  unjust,  and 
therefore  I  think  that  it  ought  not  to  be  disturbed.  There  is  no 
principle  at  stake,  and  there  is  nothing  involved  in  the  case 
save  the  amount  of  the  verdict. 

Lord  Halsbury.  My  lords,  the  facts  of  this  case  msiy,  of 
course,  be  differently  viewed  by  different  minds.  I  am  content 
with  the  view  of  the  facts  as  stated  by  the  lord  chancellor,  and 
I  am  disposed  to  think  that  I  should  have  found  the  same  verdict. 
But  what  I  take  to  be  of  supreme  importance,  as  defining  the 
functions  of  judges  and  juries,  is  the  principle  upon  which  a  new 
trial  can  be  granted  upon  the  ground  that  the  verdict  is  against 
the  weight  of  the  evidence. 

Now  I  think  that  the  principle  laid  down  in  Solomon  v. 
Bitton  (8  Q.  B.  D.  176)  is  erroneous,  as  reported,  in  the  use  of 
the  word  ' '  ought. "  If  a  court — not  a  Court  of  Appeal  in  which 
the  facts  are  open  for  original  judgment,  but  a  court  which  is 
not  a  court  to  review  facts  at  all — can  grant  a  new  trial  when- 
ever it  thinks  that  reasonable  men  ought  to  have  found  another 
verdict,  it  seems  to  me  that  they  must  form  and  act  upon  their 
own  view  of  what  the  evidence  in  their  judgment  proves.  That, 
I  think,  is  not  the  law.  If  reasonable  men  might  find  (not 
"ought  to"  as  was  said  in  Solomon  v.  Bitton)  ^  the  verdict  which 
has  been  found,  I  think  no  court  has  jurisdiction  to  disturb  a 

1  Solomon   v.   Bitton,   L.   E.    8   Q.  trial     should     be     granted     on     the 

B.  D.  177.  ground   that  the  verdict  was  unsat- 

"The  court    (Jessel,  M.  E.,  and  isfactory     as      being     against     the 

Brett    and    Cotton,    L.    JJ.)     re-  weight     of     evidence,     ought     not 

versed    the    order    appealed     from,  to  depend  on  the  question  whether 

saying  that  the  rule  on  which  a  new  the  learned  judge  who  tried  the  ac- 


704 


NEW   TRIALS. 


[Chap.  VI. 


decision  of  fact  which  the  law  has  confided  to  juries,  not  to 
judges. 

My  noble  and  learned  friend  on  the  woolsack  has  put  the 
proposition  in  a  form  which  is  not  open  to  objection,  but  which 
perhaps  leaves  open  for  definition  in  what  sense  the  word  "prop- 
erly" is  to  be  used.  I  think  the  test  of  reasonableness,  in  con- 
sidering the  verdict  of  a  jury,  is  right  enough,  in  order  to 
understand  whether  the  jury  have  really  done  their  duty.  If 
their  finding  is  absolutely  unreasonable,  a  court  may  consider 
that  that  shows  that  they  have  not  really  performed  the  judicial 
duty  cast  upon  them ;  but  the  principle  must  be  that  the  judg- 
ment upon  the  facts  is  to  be  the  judgment  of  the  jury  and  not 
the  judgment  of  any  other  tribunal.  If  the  word  ' '  might ' '  were 
substituted  for  "ought  to"  in  Solomon  v.  Bitton  I  think  the 
principle  would  be  accurately  stated. 

I  concur  in  the  motion  of  my  noble  and  learned  friend  on  the 
woolsack  that  this  appeal  should  be  dismissed  with  costs. 

Order  appealed  from  affirmed;  and  appeal  dismissed  with  costs. 


JONES  V.  SPENCER. 
77  L.  T.  B.  536.     [H.  of  L.  1898.] 

This  was  an  appeal  from  an  order  of  the  Court  of  Appeal 
(Lord  EsHER,  M,  R.,  and  Chitty,  L.  J.,  Lopes,  L.  J.,  dissenting) 
refusing  a  new  trial  in  an  action  tried  before  LAvntANCE,  J.,  and 
a  jury. 

The  action  was  brought  by  the  respondent,  a  horse  dealer  in 
London,  against  the  appellant,  a  farmer  at  Bromsgrove,  in 
Worcestershire,  to  recover  the  sum  of  £70  for  breach  of  a 
warranty  of  a  cart  horse  which  the  respondent  had  purchased 
from  the  appellant  on  a  warranty  that  the  horse  was  at  the  time 
of  the  purchase  "a  good  worker." 

The  case  of  the  respondent  was  that  on  the  arrival  of  the 
horse  by  train  in  London  it  was  immediately  found  to  be  "a 
shiverer,"  and  as  such  unable  to  back,  and  consequently  not  a 
good  worker. 


tion  was  or  not  dissatisfied  with  the 
verdict,  or  whether  he  would  have 
come  to  the  same  conclusion  as  the 


jury,  but  whether  the  verdict  was 
such  as  reasonable  men  ought  to 
have  come  to. ' ' 


Sec.  1.]  JONES  v.  spencer.  705 

In  support  of  his  case  the  respondent  called  several  veterinary 
surgeons  who  had  examined  the  animal  shortly  after  its  arrival 
in  London  and  pronounced  it  to  be  a  very  bad  shiverer  and 
suffering  from  a  disease  which  must  have  been  in  existence  at 
the  time  of  its  purchase  by  the  respondent. 

On  the  other  hand  the  appellant  called  a  number  of  witnesses 
who  had  used  the  animal  continually,  and  swore  that  up  to  the 
time  of  the  sale  the  animal  was  perfectly  sound  and  had  shown 
no  symptom  of  shivering. 

The  jury  found  for  the  respondent  for  the  amount  claimed. 

The  appellant  "l^hereupon  applied  to  the  Court  of  Appeal  for 
a  new  trial,  on  the  ground  that  the  verdict  was  against  the  weight 
of  evidence. 

In  the  course  of  his  judgment  Lord  Esher,  M.  R.,  remarked 
that,  short  of  perverseness  on  the  part  of  the  jury,  it  was  nearly, 
if  not  quite,  impossible  that  a  new  trial  could  be  obtained,  on 
the  ground  that  a  verdict  was  against  the  weight  of  evidence 
when  there  was  conflicting  evidence  in  the  case. 

Lopes,  L.  J.,  thought  that  the  Court  of  Appeal  had  gone  rather 
too  far  in  refusing  new  trials  in  such  cases,  and  that  it  was  clear 
from  the  judgment  delivered  in  the  House  of  Lords  in  the  case 
of  the  Metropolitan  Railway  Company  v.  Wright  (54  L.  T.  Rep. 
658;  11  App.  Cas.  152)  that  a  new  trial  ought  to  be  granted  if 
it  were  necessary  to  prevent  a  miscarriage  of  justice.     *     *     * 

Lord  Morris.  My  lords,  I  concur  in  the  result  at  which  your 
lordships  have  arrived,  and  I  should  have  been  entirely  satisfied 
vvith  merely  saying  so,  but  that  it  appears  to  me  to  be  really 
necessary  to  say  a  word  or  two  upon  the  decision  of  the  Court 
of  Appeal  in  this  case.  That  court  seems  to  have  been  under 
the  impression  that  there  had  been  a  new  rule  of  law  established 
by  the  decision  of  this  House  in  Metropolitan  Railway  Company 
V.  Wright  (nhi.  sup.)  as  applicable  to  the  granting  of  new  trials. 
That  mistake  may  possibly  have  arisen,  in  my  opinion,  from  the 
use  by  Lord  Selborne,  L.  C,  in  giving  judgment  in  the  Court  of 
Appeal  in  that  case,  of  the  expression  that  "the  verdict  was  not 
perverse  or  unreasonable ; "  he  brackets  the  two  terms  together 
."s  if  they  were  somewhat  synonymous.  As  I  observed  in  the 
course  of  the  argument,  a  verdict  known  as  "perverse"  is  one 
in  which  the  jury  have  disobeyed  the  directions  of  the  judge. 
In  that  case  it  would  be  called  a  "perverse  verdict,"  and  it  would 
be  set  aside  upon  grounds  wholly  different  and  dissimilar  from 

H.  T.  P.— 45 


706 


NEW   TRIALS. 


[Chap.  VI. 


those  which  would  lead  a  court  of  review  to  set  aside  a  verdict  as 
being  against  evidence,  or  against  the  weight  of  evidence.  Lord 
EsHER,  M.  R.,  in  giving  his  judgment  in  the  present  case,  laid 
down  this  rather  strong  doctrine:  "If  you  can  show  that  the 
jury  have  acted  perversely,  and  have  not  attended  to,  or  taken 
any  notice  of  the  evidence,  that  they  have  wilfully  disregarded 
what  they  were  about,  and  would  not  consider  the  evidence,  then, 
although  there  was  some  evidence,  I  should  say  that  the  verdict 
was  perverse,  and  I  should  overrule  it.  But,  short  of  that,  short 
of  showing  some  disregard  or  misconduct  of  the  jury,  I  think 
that  it  is  nearly  impossible,  if  not  quite  impossible,  for  this  court 
now  to  set  aside  a  verdict. ' '  That  appears  to  me  to  stretch  too 
far  the  doctrine  applicable  to  setting  aside  verdicts  as  against 
evidence,  or  as  against  the  weight  of  evidence.  The  use  of  the 
word  "weight"  implies  that  there  is  evidence  on  both  sides,  but 
that  it  preponderates  to  such  an  extreme  degree  on  the  one  side 
that  it  would  be  unreasonable  for  the  jury  not  to  act  upon  it, 
although  there  may  be  some  slight  weight  in  the  other  scale. 
That  doctrine  of  setting  aside  a  verdict  as  being  against  evidence, 
or  against  the  weight  of  evidence,  has  lasted  in  the  courts  for  an 
immense  time.  It  would  be  entirely  frittered  away,  in  my 
opinion,  if  the  analogy  with  a  "perverse"  verdict,  to  which  I 
have  already  called  attention,  or  "wilful  misconduct"  on  the 
part  of  the  jury,  were  to  be  taken  as  the  criterion  to  apply  to  it. 
The  criterion  to  apply  to  it  was  stated  by  the  noble  and  learned 
lords  who  gave  judgment  in  this  House,  in  Metropolitan  Railway 
Company  v.  Wright,  and  in  my  opinion  it  was  also  stated  l)y 
Lord  Ashbourne  in  giving  judgment  in  the  Privy  Council,  in 
Municipal  Council  of  Brisbane  v.  ^^lartin  (1894),  A.  C.  249,  and 
that  is  where  the  tribunal  which  has  to  decide  the  question  comes 
to  the  conclusion  that  the  jury  have,  in  the  verdict  at  whicb 
they  have  arrived,  acted  unreasonably  upon  a  contrast  of  the 
whole  of  the  evidence  on  both  sides.  That  has  been  the  definition, 
and  it  appears  to  me  that  it  would  be  entirely  abolished  and  got 
rid  of  it  we  were  to  accede  to  the  doctrine  that  it  was  necessary 
to  prove  that  the  verdict  was  either  "perverse"  or  had  arisen 
from  any  "wilful  misconduct"  on  the  part  of  the  jury,  or  "from 
their  having  shown  some  disregard  of  what  they  were  about." 
The  most  honest  jury,  possibly  from  dullness,  or  from  a  variety 
of  other  reasons,  may  have  arrived  at  a  verdict  which  the  tribunal 
which  has  to  review  it  might  hold  to  be  unreasonable,  and  that 


Sec.  1.]  MOUNT  adams  ry.  co.  v.  lowery.  707 

appears  to  me  to  come  within  the  rule.  I  think  it  would  be  a 
very  lamentable  thing  if  the  doctrine  were  stretched  to  the 
extent  laid  down  by  Lord  Esher,  M.  R.,  in  the  present  case  in 
giving  judgment  in  the  Court  of  Appeal. 

Neiv  trial  ordered. 


MOUNT  ADAMS  RY.  CO.  v.  LOAVERY. 
74  Federal  Rep.  463.      \C.  C.  A.  1896.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  West- 
ern Division  of  the  Southern  District  of  Ohio. 

This  is  an  action  for  injuries  to  a  passenger  on  a  cable  street 
car  in  the  city  of  Cincinnati.  The  defendant  in  error,  Joseph 
A.  Lowery,  was  injured  by  riding  on  the  front  seat  of  an  open 
grip  car,  by  reason  of  a  collision  between  a  car  going  north  on 
Gilbert  avenue  and  a  large  ice  wagon  going  south.  The  wagon 
belonged  to  the  Cincinnati  Ice  Company,  and  his  action  for 
damages  was  brought  against  both  the  car  company  and  the  ice 
company,  alleging  negligence  upon  the  part  of  both.  During 
the  course  of  the  trial,  it  appeared  that  the  driver  of  the  ice 
wagon  was  out  upon  a  private  expedition  of  his  own,  whereupon 
the  court,  being  of  opinion  that  the  ice  company  was  not  re- 
sponsible for  the  negligence  of  the  driver,  under  such  circum- 
stances, directed  a  verdict  in  its  favor.  The  case  then  pro- 
ceeded against  the  railway  company  as  sole  defendant,  and  re- 
sulted in  a  verdict  for  the  plaintiff  for  $7,500. 

Lurton,  Circuit  Judge,  after  making  the  foregoing  statement 
of  facts,  delivered  the  opinion  of  the  court.     *     *     * 

The  fifth  error  assigned  can  best  be  considered  at  this  point. 
It  is  that  the  court  erred  in  refusing  to  direct  a  verdict  for  the 
defendant  at  the  close  of  all  the  evidence.  In  support  of  this 
motion  the  entire  facts  of  the  case  have  been  elaborately  argued. 
Under  the  repeated  rulings  of  this  court,  as  well  as  of  the  Su- 
preme Court,  it  must  be  regarded  as  well  settled  that  upon  a 
writ  of  error  no  question  can  be  raised  as  to  whether  the  verdict 
was  against  the  weight  of  the  evidence.  That  was  a  question  for 
the  sole  determination  of  the  trial  judge  upon  the  motion  for 
a  new  trial.  His  action  in  refusing  a  new  trial  upon  that  ground 
cannot  be  assigned  as  error.     Th(>  motion  for  a  peremptory  di- 


708 


NEW   TRIALS. 


[Chap.  VI. 


reetion  at  the  close  of  all  the  evidence  was  based  upon  the  sup- 
posed insufficiency  of  the  evidence,  in  point  of  law,  to  establish 
any  negligence  against  the  street-railway  company.  What  pos- 
sible care  and  skill  did  that  company  fail  to  use,  which,  if  they 
had  used,  the  collision  might  have  been  avoided?  In  the  solu- 
tion of  this  question  we  are  not  to  weigh  the  evidence,  nor  to 
determine  the  value  of  conflicting  evidence.  The  question,  when 
a  motion  to  direct  a  verdict  is  made,  is  this :  Is  there  any  mate- 
rial and  substantial  evidence,  which,  if  credited  by  the  jury, 
would  in  law  justify  a  verdict  in  favor  of  the  other  party? 
If  there  was,  it  cannot  be  held  error  that  the  trial  judge  declined 
to  direct  the  verdict,  and  submitted  the  value  of  that  evidence 
to  the  consideration  of  the  jury.  The  duty  of  a  trial  judge 
under  such  circumstances  was  much  considered  in  Railway  Co. 
V.  Slattery,  3  App.  Cas.  1155,  where,  though  the  court  was  di- 
vided in  opinion  as  to  the  result,  there  was  great  unanimity 
of  judgment  as  to  the  proper  rule  where  there  is  any  substan- 
tial conflict  of  evidence.  In  that  case  it  was  held,  after  great 
deliberation  (no  less  than  eight  of  the  law  lords  delivering  sep- 
arate opinions),  that  "where  there  is  conflicting  evidence  on  a 
question  of  fact,  whatever  may  be  the  opinion  of  the  judge  who 
tries  the  cause  as  to  the  value  of  that  evidence,  he  must  leave 
the  consideration  of  it  for  the  decision  of  the  jury."     *     *     * 

[The  opinion  here  reviews  Ry.  v.  Slattery,  3  App.  Cas.  1155 ; 
Greenleaf  v.  Birch,  9  Pet.  292;  U.  S.  v.  Laub,  12  Pet.  1;  Insur- 
ance Co.  V.  Doster,  106  U.  S.  30 ;  Ry.  v.  Cox,  145  U.  S.  593 ; 
Todmey  v.  Ry.,  3  C.  B.  (N.  S.)  150;  Jewell  v.  Parr,  13  C.  B. 
916 ;  Ryder  v.  Wombwell,  L.  R.  4  Exch.  36 ;  Giblin  v.  McMullen, 
L.  R.  2  P.  C.  335 ;  Ry.  v.  Jackson,  3  App.  Cases,  193 ;  Bridges  v. 
Ry.,  7  H.  L.  213 ;  Denny  v.  Williams,  5  Allen,  5 ;  Parker  v.  Ross, 
11  How.  362;  Schuchardt  v.  Allen,  1  Wall.  359;  Imp.  Co.  v. 
Munson,  14  Wall.  442 ;  Pleasant  v.  Fant,  22  Wall.  116 ;  Bk.  v. 
Smith,  11  Wheat.  171.] 

Neither  is  it  a  proper  standard  to  settle  for  a  peremptory  in- 
struction that  the  court,  after  weighing  the  evidence  in  the  case, 
would,  upon  a  motion  for  a  new  trial,  set  aside  the  verdict.  The 
court  may,  and  often  should,  set  aside  a  verdict,  when  clearly 
against  the  weight  of  evidence,  where  it  would  not  be  justified  in 
directing  a  verdict.  Neither  do  we  understand  this  view  to  be 
in  conflict  with  anything  decided  by  the  Supreme  Court.  When 
that  court  said  in  Insurance  Co.  v.  Doster,  cited  heretofore,  that 


Sec.  L]  mount  adams  ry.  co.  v.  lowery.  709 

a  case  should  not  be  withdrawn  from  the  jury  "unless  the  testi- 
mony be  of  such  a  conclusive  character  as  to  compel  the  court, 
in  the  exercise  of  a  sound  judicial  discretion,  to  set  aside  a  ver- 
dict returned  in  opposition  to  it,"  it  did  not  mean  to  define  the 
limits  within  which  a  trial  judge  might  and  ought  to  grant  a 
new  trial  because  against  evidence,  or  against  the  weight  of 
evidence.  Many  cases  occur,  in  the  history  of  7iisi  prius  trials, 
where  a  new  trial  ought  to  be  granted  because  the  verdict  is 
clearly  against  the  weight  of  evidence,  when  it  would  have  been 
erroneous  to  have  directed  a  verdict  in  the  first  instance.  Still 
there  is  no  absolute  rule  justifying  a  new  trial  merely  because 
the  trial  judge  would,  upon  weighing  the  evidence,  have  found 
contrary  to  the  view  of  the  jury.  He  must  exercise  a  sound 
judicial  discretion, — a  discretion  not  reviewable  in  appellate 
courts  of  the  United  States  upon  writ  of  error.  In  illustration 
of  the  limits  within  w^hich  this  discretion  may  properly  be  exer- 
cised, we  cite  some  instances: 

In  Burton  v.  Thompson,  2  Burrows,  664,  Lord  Mansfield  said : 

"It  does  not  follow,  by  necessary  consequence,  that  there  must 
be  a  new  trial  granted,  in  all  cases  whatsoever,  where  the  ver- 
dict is  contrary  to  evidence ;  for  it  is  possible  that  the  verdict 
still  be  on  the  side  of  the  real  justice  and  equity  of  the  case. 
And  of  this  there  are  several  instances  in  the  printed  books,  par- 
ticularly the  Duchess  of  Mazarine 's  Case,  in  2  Salk.  646. ' ' 

He  added: 

"Therefore  I  do  not  think  that  we  ought  to  interfere  merely 
to  give  the  plaintiff  an  opportunity  of  harassing  the  defendant, 
at  a  great  expense  to  himself,  where  there  has  been  no  real  dam- 
age, and  where  the  injury  is  so  trivial  as  not  to  deserve  above 
a  half  crown  compensation." 

A  new  trial  will  not  be  granted,  though  against  the  evidence, 
if  found  for  the  defendant,  if  the  action  was  frivolous,  trifling, 
and  vexatious.     Macrow  v.  Hull,  1  Burrows,  11. 

hi  Farewell  v.  Chaffey,  1  Burrows,  54,  Lord  Mansfield  said: 
"A  new  trial  ought  to  be  granted  to  obtain  real  justice,  but  not 
to  gratify  litigious  passions,"  and  cited  Smith  v.  Brampston 
and  Smith  v.  Frampton,  2  Salk.  644,  and  other  old  cases.  In 
this  case  he  said : 

"The  verdicts  were  against  evidence  and  the  strict  rule  of  law, 
*  *  *  but  the  court  would  not  give  a  second  chance  of  suc- 
cess to  a  hard  action  or  unconscionable  defense." 


710  NEW    TRIALS.  fC-HAP.    Y\. 

In  Xorris  v.  Freeman,  8  Wils.  89,  the  court  said : 

"There  are  many  cases  where  the  court  will  grant  new  trials 
notwithstanding  there  was  evidence  on  both  sides,  as  where  all 
the  light  has  not  been  let  in  at  the  trial  which  might  and  should 
have  been." 

In  an  anonymous  case  referred  to  in  1  Wils.  22,  the  report  is 
as  follows : 

"On  a  motion  for  a  new  trial  in  an  action  by  the  owner  of 
the  inheritance  for  making  a  dam  across  an  ancient  water 
course,  the  judge  Avho  tried  the  cause  certified  that  six  witnesses 
were  examined  at  the  trial,  on  each  side ;  that  the  jury  found  for 
the  defendant,  which  was  against  his  opinion ;  but  that  he  could 
not  take  upon  himself  to  say  that  this  was  a  verdict  against  evi- 
dence, because  there  was  evidence  on  both  sides.  So  a  new  trial 
was  refused."     *     *     * 

[The  opinion  here  reviews,  Swinnerton  v.  Stafford,  3  Taunt. 
238 ;  Solomon  v.  Bitton,  8  Q.  B.  Div.  177 ;  Webster  v.  Friedeberg, 
17  Q.  B.  D.  736 ;  Ry.  v.  Wright,  11  App.  Gas.  152 ;  Phillips  v. 
Martin,  15  App.  Gas.  194;  Brisbane  v.  Martin,  19  App.  Gas. 
252 ;  Newspaper  Co.  v.  Bennett,  19  App.  Gas.  287 ;  Lunt  v.  Ry. 
L.  R.  1  Q.  B.  281.] 

The  rule  in  the  American  courts  seems  to  be  that,  if  the  ver- 
dict be  clearly  and  manifestly  against  the  evidence  or  the  weight 
of  evidence,  a  new  trial  should  be  granted.  Wait  v.  McNeil, 
7  Mass.  261 ;  Gurtis  v.  Jackson,  13  Mass.  507.  In  Hammond  v. 
Wadhams,  5  Mass.  353-355,  the  rule  is  thus  stated  by  Parsons, 
G.  J. : 

"We  may,  and  we  ought  to,  grant  a  new  trial  when  the  ver- 
dict is  against  the  evidence,  or  when  it  is  manifestly  against 
the  weight  of  the  evidence.  In  such  cases  the  facts  ought  to  be 
inquired  into  by  another  jury. ' ' 

Where  the  evidence  submitted  to  the  jury  is  such  as  to  render 
the  issue  doubtful,  a  new  trial  will  not  be  granted,  even  though 
the  verdict  is  against  the  apparent  weight  of  the  evidence.  Brown 
V.  Wilde,  12  Johns.  455 ;  Stryker  v.  Bergen,  15  Wend.  491. 

It  is  said  in  Tidd's  Practice,  in  his  chapter  on  New  Trials, 
that: 

"A  new  trial  may  be  moved  for  on  account  of  the  error  or 
mistake  of  the  jury  in  finding  a  verdict  without,  or  contrary  to, 
evidence.  But,  where  there  is  evidence  on  both  sides,  it  is  not 
usual  to  grant  a  new  trial,  unless  the  evidence  for  the  prevailing 


SfC.    1.]  MOUNT    ADAMS    RY.    CO.    V.    LOWF.RY.  711 

party  be  very  slight,  and  the  judge  declared  himself  dissatisfied 
with  the  verdict."    2  Tidd's  Prac,  pp.  907,  908. 

If  evidence  he  of  so  slight  a  character  as  to  come  within  a 
reasonable  definition  of  the  scintilla  rule,  it  is  the  duty  of  the 
court  to  direct  a  verdict,  or,  if  it  has  submitted  the  matter  to 
the  jury,  to  set  aside  a  verdict  having  no  other  support  than  a 
mere  scintilla.  In  all  such  cases  the  evidence  is  insufficient  in 
law. 

The  language  of  Justice  Miller  in  Pleasants  v.  Fant,  cited 
heretofore,  has  been  used  to  justify  the  claim  that  there  is  no 
difference  between  the  insufficiency  of  evidence  to  sustain  the 
otins  of  proof  which  would  justify  a  peremptory  instruction 
to  a  jury,  and  that  which  will  require  the  court  to  set  aside  a 
verdict  as  against  the  weight  of  the  evidence ;  and  yet  we  find 
in  the  language  of  Mr.  Justice  Swayne,  in  Schuchardt  v.  Al- 
iens, already  cited,  a  statement  that  the  rules  which  govern  a 
court  in  granting  a  new  trial  because  the  verdict  is  against  the 
weight  of  the  evidence  are  quite  different  from  those  which 
determine  the  question  for  the  court  whether  it  shall  deliver  a 
peremptory  instruction  to  the  jury.  An  examination  of  the 
cases  upon  which  the  result  was  put,  and  of  the  issue  there  pre- 
sented to  the  court,  justifies  the  inference  that  what  Mr.  Justice 
Miller  was  arguing  against  was  the  absurdity  of  the  scintilla 
rule,  by  which  a  case  was  submitted  to  the  jury  on  mere  surmises, 
and  slight  tendencies  of  evidence  to  establish  a  fact,  when  the 
court  was  fully  advised  that  a  verdict  could  not  stand  upon  such 
evidence.  The  language  which  he  used  is  to  be  taken  as  apply- 
ing to  the  scintilla  of  evidence  rule,  and  to  the  authoritative 
declaration  by  the  court  that  such  a  rule  was  not  to  prevail  in 
common-law  trials  in  the  Federal  Courts.  To  give  it  any  other 
construction  must  lead  to  a  result  at  war  with  the  language  of 
Mr.  Justice  Swayne  in  Schuchardt  v.  Aliens,  already  referred 
to,  that  the  rules  which  prevail  in  the  English  courts,  the  deci- 
sions of  which  were  relied  upon  by  Mr.  Justice  Miller  to  sustain 
the  view  which  the  court  took  in  Pleasants  v.  Fant,  are  in  con- 
flict with  the  considered  opinion  by  the  Supreme  Court  in  which 
the  very  point  now  under  consideration  was  presented  to  that 
court  in  the  subso(iuent  case  of  Railway  Co.  v.  Moore,  121  U.  S. 
558,  7  Sup.  Ct.  1334.  In  that  case  the  question  presented  to  the 
court  was  whether,  under  a  statute  governing  the  procedure  in 


712  NEW    TRIALS.  [ChAP.    VI. 

the  Supreme  Court  of  the  District  of  Columbia,  a  motion  for  a 
new  trial  on  the  ground  of  insufficient  evidence  entitled  the  de- 
fendant against  whom  the  verdict  was  rendered  to  bring  from 
the  special  to  the  general  term  the  ruling  for  examination  upon 
a  motion  for  a  new  trial  on  the  ground  that  the  verdict  was 
against  the  weight  of  the  evidence.  The  court  held  that  the 
term  "insufficient  evidence"  included  both  evidence  insufficient 
in  law  and  evidence  insufficient  in  fact,  and,  therefore,  that  the 
Supreme  Court  of  the  district  in  general  term  had  erred  in  not 
considering  the  motion  for  a  new  trial  on  the  ground  that  the 
verdict  was  against  the  weight  of  the  evidence.  Mr.  Justice 
Mathews  considers  the  question  as  to  what  is  meant  by  a  mo- 
tion for  a  new  trial  on  the  ground  that  the  verdict  is  against 
the  weight  of  the  evidence.     *     *     * 

It  seems  to  us  to  follow,  from  both  reason  and  authority,  that 
there  is  a  difiference  between  the  legal  discretion  of  the  court 
to  set  aside  a  verdict  as  against  the  weight  of  evidence,  and 
that  obligation  which  the  court  has  to  withdraw  a  case  from 
the  jury,  or  direct  a  verdict,  for  insufficiency  of  evidence.  In 
the  latter  ease  it  must  be  so  insufficient  in  fact  as  to  be  insuffi- 
cient in  law;  in  the  former  ease  it  is  merely  insufficient  in  fact, 
and  it  may  be  either  insufficient  in  law,  or  may  have,  more 
weight,  and  not  enough  to  justify  the  court,  in  exercising  the 
control  which  the  law  gives  it  to  prevent  injust  verdicts,  to  allow 
a  verdict  to  stand.  Randall  v.  Railroad  Co.,  heretofore  cited, 
and  the  long  line  of  cases  in  which  it  has  been  affirmed,  profess 
to  stand  upon  the  English  cases  which  w^e  have  cited,  and  par- 
ticularly upon  Ryder  v.  AVorabwell,  L.  R.  4  Exch.  32-39.  In 
that  and  other  cases  cited,  and  notably  in  the  leading  case  of 
Railway  Co.  v.  Slattery,  3  App.  Cas.  1155,  it  appears  that  cases 
were  constantly  presented  in  which  the  court  say  a  verdict  should 
have  been  set  aside  as  against  the  weight  of  evidence  where  the 
court  W'Ould  not  be  justifiable  in  directing  a  verdict.  We  do 
not  think,  therefore,  that  it  is  a  proper  test  of-  whether  the  court 
should  direct  a  verdict,  that  the  court,  on  weighing  the  evidence, 
would,  upon  motion,  grant  a  new  trial.  A  judge  might,  under 
some  circumstances,  grant  one  new  trial  and  refuse  a  second,  or 
grant  a  second  and  refuse  a  third.  In  passing  upon  such  mo- 
tions he  is  necessarily  required  to  weigh  the  evidence,  that  he 
may  determine  whether  the  verdict  was  one  which  might  rea- 


Sec.  1.]  MOUNT  adams  ry,  co.  v.  lowery.  71'5 

souably  have  been  reached.  ^  But,  iu  passing  upon  a  motion  to 
direct  a  verdict,  his  functions  are  altogether  different.  In  the 
latter  case  we  think  he  cannot  properly  undertake  to  weigh  the 
evidence.  His  duty  is  to  take  that  view  of  the  evidence  most 
favorable  to  the  party  against  whom  it  is  moved  to  direct  a  ver- 
dict, and  from  that  evidence,  and  the  inferences  reasonably  and 
justifiably  to  be  drawn  therefrom,  determine  whether  or  not, 
under  the  law,  a  verdict  might  be  found  for  the  party  having  the 
onus.  If  not,  he  should,  upon  the  ground  that  the  evidence  is 
insufficient  iu  law,  direct  a  verdict  against  that  party.  That 
there  is  a  mere  scintilla  of  evidence  is  not  enough  to  prevent  the 
withdrawal  of  the  case  from  the  jury.  Such  evidence  is  insuffi- 
cient in  law,  because  so  insufficient  in  fact.  It  is  impossible,  in 
the  very  nature  of  the  subject,  to  lay  down  a  hard  and  fast  rule 
by  which  a  trial  judge  may  determine  when  the  evidence  is  of 
greater  weight  than  to  be  regarded  as  a  mere  scintilla.  We  only 
wish  to  be  understood  as  holding  that  whenever  there  is  evi- 
dence of  so  positive  and  significant  a  character  as,  if  uncontra- 
dicted, would  support  a  verdict,  it  is  the  duty  of  the  court  to 
submit  the  case  to  the  jury,  under  proper  instructions.  It  is 
certainly  not  his  function  to  weigh  the  evidence  for  the  purpose 
of  saying  how  the  verdict  should  go. 

We  have  deemed  it  important,  before  considering  the  facts  of 
this  case,  to  clearly  state  the  rule  which  must  be  applied  as  a 

1  Brewek,  J.,  in  Kansas,  etc.,  Ey.  verdict  aside.  We  do  not  mean  that 
V.  Kunkel,  17  Kan.  145 :  "  But  he  is  to  substitute  his  own  judgment 
counsel  contend  that  trial  judges  in  in  all  cases  for  the  judgment  of  the 
this  state  imagine  the  same  rule  jury,  for  it  is  their  province  to  set- 
governs  their  action  as  ours.  We  do  tie  questions  of  fact;  and  when  the 
not  positively  know  how  this  may  evidence  is  nearly  balanced,  or  is 
be.  Two  of  our  number  have  had  such  that  different  minds  would  nat- 
experience  as  trial  judges,  and  urally  and  fairly  come  to  different 
never  so  understood  the  law;  and  conclusions  thereon,  he  has  no  right 
we  have  yet  to  meet  a  district  judge  tc  disturb  the  findings  of  the  jury, 
who  has  so  expressed  his  under-  although  his  own  judgment  might 
standing  thereof.  The  functions  of  incline  him  the  other  way.  In 
the  two  are  widely  dissimilar.  The  other  words,  the  finding  of  the  jury 
one  has  the  same  opportunity  as  the  is  to  be  upheld  by  him  as  against 
jury  for  forming  a  just  estimate  of  any  mere  doubts  of  his  correctness, 
the  credence  to  be  jiluced  in  the  But  when  his  judgment  tells  him 
various  witnesses,  and  if  it  appears  that  it  is  wrong,  that  whether  from 
to  him  that  the  jury  have  found  mistake,  or  prejudice,  or  other  cause, 
against  the  weight  of  the  evidence,  the  jury  have  erred,  and  found 
it  is  his  imperative  duty  to  set  the       against    the    fair    preponderance   of 


714 


NEW    TRIALS. 


[Chap.  Vf. 


test  of  alleged  error  where  an  assignment  of  this  character  is 
under  consideration.     *     *     * 


GOODAVIN  V.  GIBBONS. 


4  Burrow,  2108.      [1767.] 


After  two  verdicts  for  the  plaintiff,  the  defendant  had  moved 
for  another  new  trial.  It  was  an  action  of  trespass;  and  the 
trials  had  been  in  Chester. 

The  defendant  was  an  attorney.  At  the  first  trial  the  jury 
found  that  he  had  acted  beyond  his  office  and  authority  or  his 
duty  as  an  attorney ;  and  gave  a  verdict  for  the  plaintiff ;  which 
verdict  was  set  aside,  and  a  new  trial  granted.  The  second  ver- 
dict was  also  found  for  the  plaintiff,  which  second  verdict  was 
now  prayed  to  be  set  aside  also ;  and  a  third  trial  was  prayed.  A 
rule  was  made  upon  the  plaintiff,  to  show  cause. 

Upon  showing  cause,  Mr.  Morton-'s  report  was  read;  and  the 
question  was  much  litigated;  but  it  is  not  necessary  to  specify 
the  particulars;  because  only  the  general  doctrine  laid  down  is 
meant  to  be  here  taken  notice  of. 

Lord  Mansfield.    There  is  no  ground  to  say  that  a  new  trial 


the  evidence,  then  no  duty  is  more 
imperative  than  that  of  setting 
aside  the  verdict,  and  remanding  the 
question  to  anotlier  jury.  It  was  a 
fear,  in  view  of  the  meagerness  of 
the  testimony,  that  this  duty  had 
not  been  fully  recognized,  that  drew 
from  this  court  the  expressions  it 
used  in  the  two  cases  which  counsel 
e?pecially  criticize.  Whenever,  on  the 
other  hand,  a  case  reaches  this  court 
upon  the  record,  and  it  appear  that 
the  trial  court  has,  by  overruling  a 
motion  for  a  new  trial,  approved  of 
the  verdict,  it  is  and  must  be  taken 
as  its  certificate  that  the  verdict  is 
either  fully  in  accord  with  its  belief 
upon  the  testimony,  or  else  that 
there  was  such  a  fair  and  reason- 
able doubt  as  to  the  weight  of  the 


evidence,  pro  and  con,  that  honest 
and  intelligent  minds  might  fairly 
differ  in  their  conclusions,  and  that 
therefore  the  verdict  of  the  jury 
should  be  accepted  as  just.  We 
have,  therefore,  not  the  witnesses, 
but  the  finding  of  the  jury  prima 
facie  right,  and  also  the  approval 
of  the  only  judge  who  has  anything 
like  full  opportunities  of  knowing 
whether  it  was  right.  Under  those 
circumstances  it  should  be  a  very 
clear  case  before  a  reviewing  court 
should  interfere.  The  due  adminis- 
tration of  the  law  demands,  and  in 
the  long  run  the  most  satisfactory 
and  the  most  complete  justice  will  be 
secured  by  leaving  the  settlement  of 
questions  of  fact  to  the  tribunals 
whicli  see  and  hear  the  witnesses." 


Sec.  1.]  loveday's  case.  715 

shall  not  be  granted  after  a  former  new  trial  has  been  once 
granted  before. 

There  is  an  index  to  a  report-book,  which  mistakes  a  decisive 
particular  reason  in  a  particular  case,  for  a  general  rule.  See 
Modern  Cases,  index,  under  the  word  "trial" — "After  a  trial 
at  bar,  a  new  trial  denied." 

But  there  is  no  such  general  rule  as  has  been  supposed.  A 
new  trial  must  depend  upon  answering  the  ends  of  justice. 

However,  in  the  present  case,  he  said  he  did  not  see  any 
reason  for  a  new  trial.  He  observed  that  here  is  no  question 
of  right,  nor  any  great  value ;  and  upon  the  whole,  he  was  clear 
that  no  new  trial  ought  to  be  granted. 

Mr.  Justice  Yates  was  clear,  that  a  second  new  trial  might 
be  granted,  as  well  as  a  first, ^  if  the  reasons  for  granting  it  were 
sufficient. 

But  he  also  thought  that  in  the  present  case,  there  was  no 
sufficient  reason  for  granting  one. 


LOVEDAY'S  CASE. 

Style,  129.     [1648.] 

The  court  was  moved  upon  an  affidavit  that  one  of  the  jurors 
that  gave  the  verdict  against  the  plaintiff  had  a  suit  in  law  de- 
pending at  that  time  with  the  plaintiff,  and  therefore  that  the 
trial  was  not  indifferent,  and  therefore  it  was  prayed  there  might 
be  a  new  trial.     But  the  court  said,  it  could  not  be,  and  asked 

1  Davies  v.  Eoper,  2  Jur.  (N.  S.)  "Platt,  B. — The  judge  by  whom 

167   (1856).  the    cause    is    tried    hears    the    ad- 

"Alderson,    B. — There    must   be  dresses  of  counsel  to  the  jury,  who 

a  third  trial — that  is  all.     The  case  often  form   their  opinion  on  topics 

is    not    like    the    one    we    had    this  addressed    to    their    prejudice,    such 

morning,    where    the    judge    merely  as  one  of  the  parties  being  a  poor 

reported    that    he    should    not    have  man  and  his  antagonist  a  rich  one. 

found    as    the    jury    did.      Here    we  That  is  just  this  case." 

have  the  opinion  of  the  judge,  who  See,  also,  Foster  v.  Steele,  3  Bing- 

saw    the    witnesses,    and    knows    all  ham  N.  C.  892;  Graham  v.  Traction 

the  circumstances  of  the  case  better  Co.,    65    N.    J.    L.    539 ;    "Wright   v. 

than  we  can,  that  the  verdict  is  a  South.  Exp.  Co.,  80  Fed.  85. 
very  wrong  verdict. 


'10 


NEW   TRIALS. 


[ClIAP.    VT. 


the  party  why  he  did  not  challenge  the  juror  for  this  cause  at 
the  trial,  for  want  of  which  he  had  now  lost  that  advantage.^ 


LADY  HERBERT  v.  SHAW. 

11  Modern,  118.     [1708.] 

Upon  an  issue  joined,  in  an  action  between  Lady  Catharine 
Herbert,  daughter  of  the  Duke  of  Leeds,  and  the  Fishermen  of 
Milton,  a  letter  was  written  by  the  Duke  of  Leeds  to  every  par- 
ticular juryman,  wherein  he  desires  their  appearance  at  the  trial, 
and  concludes  his  letter  in  these  words,  "Which  I  shall  take  as 
a  great  obligation,  particularly  from  yourself,  and  shall  be  glad 
of  an  occasion  to  show  how  much  I  am,  sir,  your  humble 
servant. ' ' 

Upon  which  the  defendant  moved  for  a  new  trial. 

Powell,  Justice,  said,  he  remembered  a  case  in  the  court  of 
common  pleas,  where  a  stranger  wrote  to  a  juryman  to  con- 

1  Gray,  C.  J.,  in  Wassum  v. 
Feeney,  121  Mass.  93  :  ' '  The  juror 
in  question,  being  under  twenty-one 
years  of  age,  was  not  qualified  as 
the  statutes  require.  Gen.  Sts.  Chap. 
132,  §  1 ;  Chap.  6,  §  1.   But  his  name 


being  upon  the  list  of  the  jurors  re- 
turned and  empaneled,  the  defend- 
ant had  the  opportunity,  by  proper 
inquiry,  of  ascertaining  any  grounds 
of  objection  to  him,  and  might 
have  challenged  him  before  the  trial 
began. 

' '  When  a  party  has  had  an  oppor- 
tunity of  challenge,  no  disqualifica- 
tion of  a  juror  entitles  him  to  a  new 
trial  after  verdict.  This  convenient 
and  necessary  rule  has  been  applied 
by  this  court,  not  only  to  a  juror 
disqualified  by  interest  or  relation- 
ship; Jeffries  v.  Eandall,  14  Mass. 
205;  Woodward  v.  Dean,  113  Mass. 
297;  but,  even  in  a  capital  case,  to 
a  juror  who  was  not  of  the  county 
or  vicinage,  as  required  by  the  con- 
stitution.     Declaration    of    Eights, 


art.    13.     Anon,   cited   by   Jackson, 
J.,  in  1  Pick.  41,  42. 

' '  The  same  rule  has  been  applied 
by  other  courts  to  disqualification 
by  reason  of  alienage,  although  not 
in  fact  known  untU  after  verdict. 
HoUingsworth  v.  Duane,  4  Dall. 
353;  S.  C.  Wall.  C.  C.  147;  State  v. 
Quarrel,  2  Bay,  150;  Presbury  v. 
Commonwealth,  9  Dana,  203;  The 
King  V.  Sutton,  8  B.  &  C.  417;  S.  C. 
nom.  The  King  v.  Despard,  2  Man. 
&  Ry.  406.  In  the  case  of  the  Chel- 
sea Waterworks  Co.,  10  Exch.  731, 
Baron  Parke  said:  "In  the  case 
of  a  trial  by  a  jury  dfe  medietate 
(inguae,  which  by  the  forty-seventh 
section  of  the  jury  act  is  expressly 
reserved  to  an  alien,  he  may  not 
know  whether  proper  persons  are  on 
the  jury;  yet  if  he  was  found 
guilty,  and  sentenced  to  death,  the 
verdict  would  not  be  set  aside  be- 
cause he  was  tried  by  improper  per- 
sons, for  he  ought  to  have  chal- 
lenged them. ' ' 


Sec.  1.]  RICE  V.  the  state.  717 

sider  that  the  plaintiff  was  a  poor  man ;  for  which  a  new  trial 
was  granted,  and  the  writer  taken  up  and  committed ;  but  here 
this  seems  only  an  invitation,  and  an  endeavor  for  a  full  jury 
to  appear,  in  order  to  avoid  a  tales;  and  a  man  may  write  in  be- 
half of  his  daughter.  But  the  doubt  with  me  is  on  the  com- 
pliment here  paid  to  the  jurymen  by  so  great  a  man  as  the  Duke 
of  Leeds.  And  he  thought  the  fact  hardly  justifiable  even  in  a 
father. 

This  case  was  argued  in  Easter  Term  last,  and  likewise  in  this 
term: 

And  now  it  was  resolved  by  Holt,  Chief  Justice,  Powell, 
PowYS,  and  Gould,  Justices,  that  no  new  trial  should  be  granted ; 
because  the  defendant,  having  notice  of  such  a  letter  long  before 
the  trial,  might  have  moved  for  a  trial  at  bar,  which  the  other 
side  had  offered  to  consent  to.  But  taking  the  letter  as  it  is  in 
itself,  it  is  of  dangerous  consequence ;  for  it  is  a  temptation  to 
the  jury  to  be  partial,  and  takes  off  their  indifferency.  But 
secondly,  if  a  party  have  cause  of  challenge,  and  know  of  it  time 
enough  before  the  trial,  if  he  do  not  challenge,  he  shall  not  have 
a  new  trial  ;^  contra  if  he  has  not  timely  notice  of  it.  The  party 
himself  cannot  give  a  juryman  money  to  appear;  for  it  cannot 
be  supposed  that  he  will  hire  him  to  give  a  verdict  against  him- 
self. 

The  motion  was  denied. 

And  note,  Holt,  Chief  Justice,  in  delivering  his  opinion  cited 
a  case  in  the  time  of  Edward  the  Third,  where  a  new  trial  was 
granted,  because  a  great  lord  concerned  in  the  cause  sat  upon 
the  bench  at  the  trial. 


RICE  V.  THE  STATE. 

16  Indiana,  298.     [1861.] 

Worden,  J.  Indictment  against  the  appellant  for  assault  with 
intent  to  murder.  INIotion  to  quash  overruled.  Trial,  conviction 
and  judgment ;  a  new  trial  being  denied.     *     *     * 

1  The    same    rule    is    applied    to  317;   State   v.   Barrinfrton,   198   Mo. 

cases  of  miscondnft  on  the  part  of  23. 

the  jury  during  the  progress  of  the  But  see  Craig  v.  Pierson  Lumber 

trial.      Wood    v.    Moulton,    146   Cal.  Co.,  169  Ala.  545. 


718  NEW  TRiAi-s.  [Chap,  VI. 

One  of  the  petit  jurors  by  whom  the  cause  was  tried  was  one 
of  the  grand  jurors  who  found  the  indictment.  It  sufficiently 
appears  that  the  defendant,  as  well  as  his  counsel,  was  ignorant 
of  this  fact  until  after  the  return  of  the  verdict.  The  juror  was, 
at  the  proper  time,  interrogated  as  to  his  competency,  and  dis- 
claimed having  formed  or  expressed  any  opinion  as  to  the  guilt 
or  innocence  of  the  accused,  though  he  was  not  asked  if  he  had 
been  a  member  of  the  grand  jury  which  found  the  indictment. 
The  affidavit  of  the  juror  himself  was  filed  in  support  of  the 
verdict,  in  which  he  says  he  had,  at  the  time  of  being  examined, 
no  opinion  as  to  the  defendant's  guilt,  and  had  forgotten  the 
circumstance  of  his  having  been  on  the  grand  jury.  A  new  trial 
was  asked  on  this  ground. 

We  think  it  clear  that  the  juror  was  incompetent,  and  that  the 
defendant  was  guilty  of  no  negligence  in  not  sooner  discovering 
the  fact.  Had  the  incompetency  of  the  juror  been  known  to  the 
accused  at  the  time  the  jury  was  accepted  and  sworn,  he  could 
not  afterward  have  been  heard  to  make  the  objection.  Barlow 
V.  The  State,  2  Blackf.  114.  Here  the  accused  undertook  to  test 
the  juror's  freedom  from  bias,  and  being  answered  by  the  juror 
that  he  had  formed  no  opinion  in  the  case,  he  was  not  required 
to  go  further,  and  ascertain  whether  he  had  been  on  the  grand 
jury,  or  whether  he  was  under  any  other  disqualification.  An 
accused  person  has  a  right  to  presume  that  the  jurors  called  to 
try  him  are  competent,  and  he  need  not  anticipate  possible  ob- 
jections unless  he  has  notice  that  they  exist,  or  has  some  reason 
to  suppose  that  they  may  exist.  A  person  called  to  serve  as  a 
juror  may  have  formed  an  opinion  in  the  case,  and  reasonable 
diligence  on  the  part  of  the  accused  requires  that  he  should 
test  the  juror  in  this  respect;  but  having  done  so,  he  is  guilty 
of  no  negligence  in  relying  upon  the  statements  of  the  juror,  and 
trusting  to  the  State  to  put  him  upon  trial  before  an  impartial 
and  competent  jury.     A  new  trial  should  have  been  granted.^ 

Per  curiam.  The  judgment  is  reversed,  and  the  cause  re- 
manded. 

1  See    also    Bennett    v.    State,    24 
Wis.  57. 


Sec.  1.]  WAIT  V.  maxwell.  719 

WAIT  V.  MAXWELL. 

5  Pickering,  217.      [1827.] 

This  was  an  action  of  covenant  on  a  deed  executed  by  the 
defendant's  intestate,  Abel  Wilder,  to  the  plaintiff,  dated  March 
15,  1821,  containing  the  usual  covenants  of  warranty  and  seisin. 
The  declaration  alleged  a  breach  of  the  covenant  of  seisin.  The 
defendant  pleaded  that  Wilder  was  seised  and  had  good  right 
to  convey ;  and  issue  was  joined  thereon. 

On  the  trial,  before  Wilde,  J.,  the  defendant,  to  prove  the 
seisin  of  the  intestate,  offered  in  evidence  a  deed  to  him  from 
Dorothy  Kemp,  dated  May  24,  1819. 

The  plaintiff  contended  that  this  deed  was  void,  Dorothy  being 
under  guardianship  at  the  time  of  executing  it ;  and  he  offered 
in  evidence  certain  proceedings  in  the  Probate  Court  in  June, 
1818,  by  which  it  appeared  that  the  selectmen  of  Shelburne, 
upon  an  inquisition  made,  certified  that  she  was  superannuated 
and  incapable  of  taking  care  of  herself,  and  that  the  judge  of 
probate  thereupon  appointed  guardians  over  her.  It  did  not 
appear  that  she  had  notice  of  the  inquisition  about  to  be  made. 
The  defendant  contended  that  these  proceedings  in  the  Probate 
Court  were  not  sufficient  to  avoid  the  deed  of  Dorothy,  and  the 
judge  was  of  that  opinion. 

The  plaintiff  then  introduced  witnesses  to  show  that  Dorothy, 
at  the  time  of  executing  the  deed,  was  non  compos  mentis;  and 
the  defendant  introduced  as  a  witness  one  Wells,  on  whose 
application  the  proceedings  in  the  Probate  Court  were  had,  who 
testified  that  Dorothy  was  as  capable  of  understanding  and  trans- 
acting business  as  most  people  of  her  age.  On  this  evidence  it 
was  left  to  the  jury  to  decide  as  to  her  capacity  to  make  a  valid 
deed ;  and  the  jury  were  instructed  that  in  Aveighing  the  evidence 
touching  this  point  they  had  a  right  to  take  into  consideration 
the  proceedings  of  the  Probate  Court,  although  the  same  were  not 
conclusive  to  show  that  Dorothy  was  non  compos  mentis. 

A  verdict  was  found  for  the  plaintiff;  but  if  the  decisions  of 
the  judge  were  wrong  a  new  trial  was  to  be  granted. 

Parker,  C.  J.  The  decree  of  the  Court  of  Probate,  granting 
letters  of  guardianship,  is  void,  because  it  does  not  appear  that 
any  notice  was  given  to  the  subject  of  it  before  the  inquisition 


720  NEW   TRIALS.  [ChAP.    VI. 

taken;  nor  is  there  any  judgment  or  decree  ascertaining  that 
she  was  nan  compos.  Probably  the  proceedings  of  the  Probate 
Court  would  have  been  rejected  from  the  evidence  if  a  motion 
to  that  effect  had  been  made  at  the  trial.  They  were  objected 
to  only  as  proving  conclusively  the  incapacity  of  Dorothy  Kemp, 
and  the  objection  was  sustained  by  the  court;  but  the  pro- 
ceedings remained  in  the  case  and  made  part  of  the  evidence 
committed  to  the  jury.  A  new  trial  is  not  necessarily  to  be 
granted  because  evidence  has  been  introduced  into  a  cause,  which, 
if  liable  to  objection,  ought  upon  motion  to  have  been  rejected, 
not  even  if  such  evidence  is  commented  upon  by  the  judge ;  for 
it  sometimes  happens  that  evidence,  which  would  be  inadmissible 
if  objected  to,  is  admitted  by  consent;  and  if  the  judge  is  not 
called  upon  to  decide  on  its  competency,  it  ought  to  be  con- 
sidered as  tacitly  assented  to.  If  this  were  not  the  rule,  it  would 
be  in  the  power  of  parties  to  put  the  adversary  to  expense  and 
delay  by  trying  the  chance  of  a  verdict  in  their  favor,  and  if 
they  fail,  of  obtaining  a  new  trial ;  which  would  be  injurious  to 
the  rights  of  the  party  gaining  the  verdict.  Besides,  if  the 
evidence  offered  is  objected  to,  it  may  be  supplied  by  other 
evidence,  or  the  party  who  offers  it  may  abandon  his  cause  in 
that  stage  of  the  proceedings  without  incurring  additional  ex- 
pense. It  should  be  understood,  therefore,  that  unless  the  court 
is  moved  for  the  rejection  of  evidence,  it  must  be  considered  that 
all  objections  are  waived,  and  that  no  relief  can  be  had  after 
the  verdict,  on  the  ground  of  the  incompetency  or  informality 
of  the  evidence.  And  the  same  rule  will  be  observed  in  relation 
to  the  charge  of  the  judge  respecting  such  evidence,  if  he  is  not 
specially  asked  to  consider  it  as  not  belonging  to  the  case,  on 
account  of  inadvertency  in  the  counsel  in  suffering  it  to  pass 
without  objection. 

We  are  satisfied,  however,  that  the  verdict  has  been  returned 
upon  a  wrong  principle,  ancj  that  it  is  within  the  discretion  of 
the  court  to  grant  a  new  trial,  notwithstanding  the  point  on 
which  we  decide  was  not  distinctly  raised  at  the  trial.  The  deed 
of  Dorothy  Kemp  was  not  void,  but  only  voidable.  It  conveyed 
a  seisin  to  the  grantee,  defeasible  by  her,  her  heirs  or  devisees, 
when  entry  should  be  made  to  avoid  it.  The  issue  therefore  was 
maintained  by  the  defendant,  for  the  only  point  was  whether 
Wilder  was  seized  when  he  conveyed  to  the  plaintiff.  It  is  very 
clear  that  he  was,   according  to  the  effect   given  to  deeds  of 


Sec.  1.]  CREASE  v.  barrett.  721 

bargain  and  sale  by  our  statute.  Had  Dorothy  been  actually 
under  guardianship  when  she  made  the  deed,  it  would  have  been 
otherwise,  as  the  decree  and  letters  of  guardianship  would  have 
taken  from  her  all  capacity  to  convey;  but  there  was  no  such 
decree  or  letters,  the  whole  proceedings  on  that  subject  being 
null  and  void;  so  that  the  presumption  of  law  was  in  favor  of 
her  capacity,  and  her  deed  was  valid,  until  by  entry  or  action 
the  grantee  was  ousted  or  the  deed  avoided. 

We  think,  as  the  rule  of  damages  would  be  different  on  the 
other  covenants  in  the  deed,  there  ought  to  be  a  new  trial,  with 
leave  to  the  plaintiff  to  amend  by  adding  a  count  or  counts  on 
the  other  covenants,  and  that  if  the  defendant  prevails  he  should 
recover  no  costs  for  the  term  at  which  the  former  trial  was  had. 

New  trial  granted.^ 


CREASE  V.  BARRETT. 
1  Crompton,  Meeson  &  Roscoe,  919.     [1835.] 

Parke,  B.  On  the  motion  for  a  new  trial,  in  this  case,  on  the 
ground  that  Lord  Lyndhurst  received  improper  evidence  for  the 
plaintiff,  and  rejected  admissible  evidence  for  the  defendant, 
several  points  were  made,  all  of  which  have  been  disposed  of, 
either  on  the  motion  for  a  rule  nisi  or  on  the  argument  on  show- 
ing cause,  except  three.     *     *     * 

The  last  objection  is  that  the  declaration  of  the  prince  con- 
tained in  a  lease  of  February,  1798,  was  improperly  rejected. 
In  the  description  of  the  parcels  in  that  lease  from  the  prince 
to  Thomas  Carlyon,  they  are  described  as  separated  on  the  east 
side  from  a  common  called  Boscundle  Common,  the  land  of  Mr. 
Carlyon,  by  certain  stone  posts ;  and  it  was  therefore  contended 
that  this  amounted  to  an  admission  that  Boscundle  Common,  the 
land  in  which  the  mines  in  question  were  worked,  was  Mr. 
Carlyon 's.     *     *     * 

This  admission  certainly  falls  under  that  description,  inas- 
much as  it  is  an  admission  that  the  surface  of  the  locus  in  quo 
under  which  the  plaintiff  now  claims  the  minerals,  on  the  ground 

1  See  also  Nulton  v.  Croskey,  111       Ins.  Co.,  79  N.  Y.  506;   McCann  v. 
Mo.   App.    18;    Standard   Oil   Co.   v.       Ullman,   109   Wis.   574. 
H.  T.  P. — 46 


722  NEW   TRIALS.  [ChAP.    YI. 

that  it  was  part  of  the  wastes  of  the  manor  in  1798,  was  at 
that  time  private  property. 

It  may  be  that  the  supposed  admission  may  be  readily  ex- 
plained, and  may  not  weigh  in  the  least  against  the  very  strong 
evidence  of  the  right  of  the  prince  to  the  mines  in  question, 
from  the  actual  perception  of  toll  from  them  for  a  considerable 
period ;  but  we  cannot  on  this  account  refuse  to  submit  the  ques- 
tion to  the  consideration  of  another  jury.  The  authority  of  Doe 
d.  Lord  Teynham  v.  Tyler  (4  M.  &  Pa.  377;  6  Bing.  561)  was 
quoted  to  show  that  the  court  have  a  power  to  refuse  a  new 
trial  where  evidence  has  been  improperly  rejected,  if  in  their 
judgment  the  rejected  evidence  ought  to  have  no  effect,  and  there 
is  enough  to  warrant  the  verdict  against  the  party  on  whose 
behalf  that  evidence  was  offered,  supposing  it  to  have  been  ad- 
mitted. Something  to  the  same  effect  had  fallen  from  Sir  James 
Mansfield  in  1  Taunt.  14,  and  from  Lord  Tenterden  in  Tyr- 
whitt  V.  Wynne  (2  B.  &  A.  559).  But  we  cannot  help  thinking 
that  the  rule  is  there  laid  down  much  too  generally ;  and  it  is 
obvious  that  if  it  were  acted  upon  to  that  extent  the  court  would 
in  a  degree  assume  the  province  of  the  jury;  and  besides  its 
frequent  application  would  cause  the  rules  of  evidence  to  be  less 
carefully  considered,  and  the  litigant  parties  would  in  all  proba- 
bility have  on  most  occasions  recourse  to  bills  of  exceptions  for 
the  rejection  or  reception  of  improper  evidence ;  a  course  produc- 
tive of  great  delay  and  inconvenience.  In  some  cases,  no  doubt, 
the  court  may  refuse  a  new  trial  when  the  witness  has  been 
improperly  rejected,  as  where  the  fact  which  such  evidence  was 
to  establish  was  proved  by  another  witness,  and  not  disputed, 
Edwards  v.  Evans  (3  East,-^51),  or  where,  assuming  the  re- 
jected evidence  to  have  been  received,  a  verdict  in  favor  of  the 
party  for  whom  it  was  offered  would  have  been  clearly  and 
manifestly  against  the  weight  of  evidence,  and  certainly  set 
aside  upon  application  to  the  court  as  an  improper  verdict. 

We  cannot  say,  however  strong  our  opinion  may  be  on  the 
propriety  of  the  present  verdict,  that,  if  the  lease  had  been 
received,  it  would  have  had  no  effect  with  the  jury ;  nor  that  it 
is  clear  beyond  all  doubt,  if  the  verdict  had  been  for  the  de- 
fendant, that  it  would  have  been  set  aside  as  improper;  and 
therefore  we  think  that  there  must  be  a  new  trial. 

Rule  absolute. 


Sec.    1.]  WALDRON   V.    WALDRON.  723 

WALDRON  V.  WALDRON. 

156  V.  S.  361.      [1894.] 

Mr.  Justice  White.     *     *     * 

We  come  now  to  the  last  contention,  which  is  this,  that,  con- 
ceding misuse  was  made  of  the  record  and  other  evidence,  yet, 
as  the  misuse  was  corrected  by  the  final  charge  of  the  court, 
therefore  the  error  was  cured.  Undoubtedly  it  is  not  only  the 
right  but  the  duty  of  a  court  to  correct  an  error  arising  from  the 
erroneous  admission  of  evidence  when  the  error  is  discovered,  and 
when  such  correction  is  made,  it  is  equally  clear  that,  as  a 
general  rule,  the  cause  of  reversal  is  thereby  removed.  State  v. 
May,  4  Dev.  (Law)  330;  Goodnow  v.  Hill,  125  Mass.  587,  589; 
Smith  V.  Whitman,  6  Allen,  562 ;  Hawes  v.  Gustin,  2  Allen,  402, 
406 ;  Dillin  v.  People,  8  Michigan,  357,  369 ;  Specht  v.  Howard, 
16  Wall.  564.  There  is  an  exception,  however,  to  this  general 
rule,  by  virtue  of  which  the  curative  effect  of  the  correction,  in 
any  particular  instance,  depends  upon  whether  or  not,  consider- 
ing the  whole  case  and  its  particular  circumstances,  the  error  com- 
mitted appears  to  have  been  of  so  serious  a  nature  that  it  must 
have  affected  the  minds  of  the  jury  despite  the  correction  by  the 
court.  The  rule  and  its  exception  were  considered  in  Hopt  v. 
Utah,  120  U.  S.  430,  438,  where  the  foregoing  authorities  were 
cited,  and  the  principle  was  thus  stated  by  ]\Ir.  Justice  Field: 
"But,  independently  of  this  consideration  as  to  the  admissibility 
of  the  evidence,  if  it  was  erroneously  admitted  its  subsequent 
withdrawal  from  the  case  with  its  accompanying  instruction 
cured  the  error.  It  is  true  that  in  some  instances  there  may  be 
such  strong  impressions  made  upon  the  minds  of  the  jury  by 
illegal  and  improper  testimony  that  its  subsequent  withdrawal 
will  not  remove  the  effect  caused  by  its  admission ;  and  in  that 
case  the  original  objection  may  avail  on  appeal  or  writ  of  error. 
But  such  instances  are  exceptional."  *  *  *  The  case  here, 
we  think,  comes  within  the  exceptions. 

Judgment  reversed. 


724  NEW   TRIALS.  [ChAP.    VI. 

TILLY  MIL'  V.  WHARTON. 

2  Vernon,  378.     [1700.] 

Wharton  on  a  plea  of  non  est  factum  had  obtained  a  verdict 
on  a  bond  of  £3000  penalty  for  pajrment  of  £1500,  and  there  not 
being  sufficient  personal  assets,  Wharton  brought  a  bill  to  have 
a  trust  of  lands  executed  in  aid  of  the  personal  estate.  The 
defendant  insisted  the  bond  was  forged,  and  had  made  a  strong 
proof  of  it;  but  that  being  the  point  tried  at  law,  the  court 
would  not  enter  into  the  proof  thereof,  or  permit  the  depositions 
to  be  read ;  but  admitted  if  the  witnesses  had  been  convicted  of 
perjury,  or  the  party  of  forgery,  that  might  have  been  a  just 
ground  for  relief  in  equity,  especially  since  the  prosecuting  of 
attaints  was  become  in  a  manner  impracticable;  but  upon  an 
appeal  to  the  House  of  Peers  a  new  trial  was  directed,^  and  the 
bond  found  to  be  forged. 


FABRILIUS  V.  COCK. 
3  Burrow,  1771.       [1765.] 

This  was  an  action  of  trover  for  6000  pagodas,  of  the  value  of 
8s.  each,  or  £2400  sterling,  in  which  a  verdict  had  been  given  for 
the  plaintiff  for  £2400  at  nisi  prius  in  Middlesex,  before  Lord 
Mansfield. 

On  Friday,  25th  of  January  last,  Mr.  Serjeant  Davy,  on 
behalf  of  the  defendant,  moved  for  a  new  trial. 

The  plaintiff  was  a  Dane,  and  the  case  he  made  at  the  trial 
was  "that  he  had  escaped  from  a  Danish  settlement  in  the  East 
Indies  with  6000  pagodas  quilted  about  his  body."  (He  was 
present  in  court ;  walked  to  and  fro,  with  great  agility,  and  then 
showed  he  had  6000  pieces  of  lead,  of  the  size  of  pagodas,  con- 
cealed and  fastened  about  his  body.)  That  he  came  aboard  one 
of  our  East  India  ships,  of  which  the  defendant  was  mate,  and 
that  he  had  deposited  these  pagodas  with  him. 

1  See  also  Seward  v.  Cease,  50  111. 
228. 


Sec.  1.]  •  FABRiLius  V.  COCK.  725 

Some  Danish  sailors,  who  were  aboard,  swore  to  circumstances 
which  proved  his  having  the  pagodas  and  putting  them  into  the 
defendant's  hands.  Great  stress  was  laid  upon  the  confusion 
the  defendant  appeared  to  be  in,  when  the  money  was  demanded 
of  him.  A  witness,  who  called  himself  a  Danish  consul,  swore 
to  circumstances  in  support  of  the  plaintiff's  case. 

The  defendant  always  denied  the  whole  story;  but  was  not 
able  to  contradict  the  proof  at  the  trial.  So  the  jury,  to  the 
satisfaction  of  Lord  Mansfield,  found  a  verdict  for  the  plaintiff 
for  £2400,  the  value  of  the  pagodas. 

The  defendant  moved  for  a  new  trial,  upon  the  ground  "that 
the  whole  was  a  fiction,  supported  by  perjury,  which  he  could 
not  be  prepared  to  answer.  That  since  the  trial  many  circum- 
stances had  been  discovered  to  detect  the  iniquity,  and  to  show 
the  subornation  of  the  witnesses. ' '  ^ 

The  court,  after  a  very  strict  scrutiny,  on  Monday,  the  11th 
February  last,  granted  a  new  trial  on  payment  of  costs. 

The  justice  and  propriety  of  this  determination  appeared  in 
a  very  strong  light  to  many  persons,  who  thought  the  whole  story 
to  be  manifestly  a  scheme  of  villainy,  supported  by  perjury. 
And  the  plaintiff  never  dared  to  try  it  again. 

And  now  (this  9th  of  November,  1765),  on  Mr.  Davenport's 
motion,  the  plaintiff  not  having  proceeded,  a  rule  was  made  for 

Judgment  as  in  case  of  a  nonsuit. 

1  Lord  Mansfield,  in  Petrie  v.  the  charge  is  true.  Neither  the  na- 
Milles,  3  Douglas,  27:  "Secondly,  ture  of  the  perjury  nor  the  names 
he  says,  if  he  had  been  apprised,  he  of  the  witnesses  who  are  to  support 
could  have  answered  the  plaintiff 's  the  indictment  are  stated,  but  it  ap- 
case  at  the  trial,  for  he  has  two  wit-  pears  that  the  defendant  himself 
nesses  who  might  have  been  pro-  is  one  of  those  witnesses.  The  first 
duced;  but  it  is  not  stated  who  instance  in  which  an  application  of 
those  witnesses  are,  nor  what  they  this  kind  was  successful  in  the  case 
could  have  proved,  nor  is  there  any  of  the  pagodas  (Fabrilius  v.  Cock, 
affidavit  by  them.  Lastly,  the  de-  3  Burr,  1771).  It  was  a  clear  and 
fendant  says  that  an  indictment  for  certain  perjury,  and  suspected  by 
perjury  has  been  found  against  the  the  court  at  the  trial,  and  the  wit- 
witness    for   the    plaintiff.      This   is  ness  ran  away. 

another    instance    of    the    mischief  ' '  These  are  aU  the  grounds  of  the 

which    would    ensue    if    proceedings  application.     It  seems  a  most  auda- 

were  to  be  stayed  in  consequence  of  cious  one,  and  the  rule  ought  to  be 

the    finding   of    a   bill    for   perjury.  discharged    with    costs." 

The    bill    is    found    entirely    on    ex  See  also  Sly  v.  Union  Depot  Co., 

parte  evidence,  and  is  no  proof  that  134   Mo.   681. 


726  NEW  TRIALS.  [Chap.  VI. 

RICHARDSON  v.  FISHER. 

7  Moore,  546.     [1823.] 

This  was  an  action  for  goods  sold  and  delivered,  in  which  the 
plaintiff  sought  to  recover  from  the  defendants  the  amount  of 
certain  articles  furnished  to  them,  as  part  owners  of  two  vessels 
called  the  Harriet  and  Thetis.     *     *     * 

His  lordship  left  it  to  the  jury  to  say  to  whom  the  credit  was 
originally  given ;  they  thought,  from  the  testimony  of  the  notary, 
that  it  was  given  to  the  defendants,  and  accordingly  found  a 
verdict  for  the  plaintiff. 

Mr.  Serjeant  Pell  having,  in  the  last  term,  obtained  a  rule  nisi, 
that  this  verdict  might  be  set  aside  and  a  new  trial  granted, 
on  the  ground  that  the  verdict  was  against  evidence,  but  chiefly 
on  the  above  affidavit  of  the  notary.     *     *     * 

Lord  Chief  Justice  D.\llas.  Why  did  you  call  him  as  a  wit- 
ness, if  you  did  not  consider  his  evidence  to  be  material?  The 
question  was  not,  who  were  the  legal  owners,  but  to  whom  was 
the  credit  originally  given  by  the  plaintiff;  and  it  appeared 
from  his  own  books  that  Bagshaw  and  Seale  only  were  debited, 
and  not  the  defendants.  Independently  of  this,  I  am  of  opinion 
that  there  must  be  a  new  trial,  as  the  notary  has  since  sworn 
that  he  was  mistaken  as  to  one  of  the  defendants  being  the 
person  who  employed  him  to  prepare  the  bills  of  sale. 


DEXTER  V.  HANDY. 

13  Rhode  Island,  474.     [1881.] 

DuRFEE,  C.  J.  This  is  a  petition  for  a  new  trial  of  an  action 
pending  in  the  Court  of  Common  Pleas,  in  which  a  verdict  was 
found  for  the  plaintiff.  The  action  is  case  for  slander.  The 
words  declared  on  as  slanderous  reflect  on  the  plaintiff's  char- 
acter for  chastity  and  accuse  her  of  a  specific  act  of  fornication. 
The  defense  was  that  the  words  were  true.  On  the  trial  the  plain- 
tiff called  two  witnesses  who  testified  to  her  good  character,  and 
also  a  witness  who  testified  in  disproof  of  the  alleged  act  of  for- 
nication.   The  ground  of  the  petition  is  that  these  witnesses,  after 


Sec.  1.]  DEXTER  V.  HANDY.  727 

the  trial  was  over,  severally  admitted  that  their  testimony  was 
untrue.  The  affidavits  of  persons  who  profess  to  have  heard 
these  admissions  are  filed  in  support  of  the  petition,  but  no  affi- 
davits are  produced  from  the  witnesses  themselves  either  admit- 
ting that  their  testimony  was  false  or  stating  anything  diil'er- 
ently  from  their  testimony,  while,  on  the  contrary,  one  of  the 
witnesses,  and  he  the  most  important,  has  given  an  affidavit  de- 
nying that  he  ever  made  the  admissions.  If  another  trial  were 
granted,  tiie  new  evidence  would  not  be  admissible  in  proof  of 
the  issue  made  by  the  defendant,  but  only  to  contradict  or  dis- 
credit the  witnesses  if  they  were  again  put  on  the  stand  by  the 
plaintiff.  A  new  trial  is  seldom  granted  for  the  introduction  of 
newly  discovered  testimony  which  goes  merely  to  impeach  the 
witnesses  of  the  prevailing  party.  We  confess  that  the  peti- 
tion does  not  commend  itself  to  our  minds.  If  the  affidavits  in- 
troduced by  the  petitioner  are  true,  the  witnesses  have  con- 
fessed themselves  perjurers;  and  yet  the  petitioner,  while  he 
asks  us  to  grant  him  a  new  trial  on  that  account,  has  not,  so 
far  as  appears,  taken  any  steps  to  have  them  prosecuted.  It  has 
been  decided  that  a  new  trial  on  account  of  perjury  will  not  be 
granted  until  after  the  perjured  witness  either  has  been  con- 
victed or  is  dead,  mere  evidence  of  the  perjury,  or  even  an  in- 
dictment for  it,  being  deemed  insufficient.  Dyche  v.  Patton,  3 
Jones  Ep.  332;  Benfield  v.  Peters,  3  Doug.  24;  Seeley  v.  May- 
hew,  4  Bing.  561 ;  Wheatley  v.  Edwards,  Lofft.  87.  Perhaps  the 
rule  laid  down  in  these  cases  may  be  too  strict  and  exacting  for 
all  circumstances,  but  it  is  obviously  founded  in  wise  policy. 
Certainly  the  talk  of  a  witness  after  trial  ought  not  generally  to 
weigh  against  his  sworn  testimony ;  for  there  would  be  no  secur- 
ity for  verdicts  if,  without  peril  to  the  witnesses,  they  were 
liable  to  be  upset  by  such  talk.  The  best  evidence  of  perjury  is 
the  conviction  of  the  perjurer.  It  is  against  the  petition  that 
the  petitioner  can  find  no  precedent  for  it.  There  is,  however, 
precedent  against  it.  In  Commonwealth  v.  Randall,  Thacher 
Cr.  Cas.  500,  it  was  held  that  expressions  used  by  a  witness  after 
a  trial,  contradicting  or  denying  what  he  said  in  court,  are  not 
ground  for  setting  aside  the  verdict  and  for  granting  a  new 
trial,  but  are  evidence  to  convict  him  of  perjury.  "In  almost 
every  instance,"  said  the  court,  "it  would  be  easy  for  a  losing 
party  to  obtain  affidavits  of  that  description."  We  must  there- 
fore refuse  a  new  trial  on  this  ground. 


728  NEW   TRIALS.  [ChAP.    VI. 

The  other  ground  for  a  new  trial  is  the  discovery  of  new  tes- 
timony of  a  different  kind.  The  petition,  however,  does  not  show 
that  the  testimony  might  not,  with  proper  diligence,  have  been 
had  at  the  trial.  Moreover,  the  testimony  is  of  but  slight  im- 
portance, and  goes  rather  to  the  matter  of  damages  than  to  the 
question  primarily  at  issue.  Ham  v.  Taylor,  22  Texas,  225; 
Schlencker  v.  Risley,  4  111.  483.  We  do  not  think  it  furnishes 
a  sufficient  ground  for  a  new  trial.  The  petition  is  therefore 
dismissed  with  costs. 

Petition  dismissed. 


ANDERSON  v.  GEORGE. 
1  Burrow,  352.     [1757.] 

Upon  a  rule  for  the  plaintiff  to  show  cause  "Why  a  verdict 
obtained  by  him  for  £16  should  not  be  set  aside,  and  a  new  trial 
ordered,  upon  payment  of  costs." 

The  case  appeared  to  be,  that  the  plaintiff  had  sold  goods  to 
the  defendant,  who  paid  for  them  by  a  promissory  note  of  one 
Hopley,  which  the  defendant  indorsed.  The  plaintiff  demanded 
the  money  of  Hopley,  but  indulged  him  with  a  further  day  of 
payment,  several  times,  till  Hopley  broke. 

The  only  dispute  between  the  parties  was,  "Wliich  of  them 
ought  to  bear  the  loss  of  this  note."  For  the  plaintiff  was  paid, 
if  the  loss  ought  to  fall  upon  him,  through  his  neglect  or  indul- 
gence in  giving  further  credit  to  Hopley. 

There  were  two  counts  in  the  declaration :  one,  for  goods  sold ; 
the  other,  against  the  defendant  as  indorser  of  the  promissory 
note. 

When  the  cause  came  on  to  be  tried,  though  both  parties  came 
to  try  the  real  merits  of  the  question  between  them,  viz.,  ' '  which 
should  bear  the  loss  of  the  note  occasioned  by  Hopley 's  failure;" 
and  the  plaintiff's  agents  had  the  note  in  court;  yet  finding  upon 
their  own  evidence,  "that  the  plaintiff  had  given  repeatedly 
further  credit  to  Hopley,"  they  resorted  to  a  trick,  and  rested 
their  case  upon  proving  the  sale  and  delivery  of  the  goods, 
which  never  was  disputed.  The  defendant  could  not  produce 
the  note;  it  was  in  the  plaintiff's  custody.  Relying  upon  its  be- 
ing the  only  ground  of  the  plaintiff's  case,  the  defendant  had 


Sec.  1.]  COOKE  v.  berry.  729 

not  given  him  notice  "to  produce  it."  The  count  stating  it, 
could  not  be  given  in  evidence,  and  the  defendant  had  not  en- 
titled himself  to  prove  the  contents,  for  want  of  notice  to  pro- 
duce it.  Lord  Mansfield  told  them,  at  the  trial,  it  was  an  im- 
proper artifice ;  that  no  verdict  could  stand,  w^hich  was  so  ob- 
tained. But  the  plaintiff  refused  to  produce  the  note  and  had 
a  verdict  of  course. 

It  was  now  contended,  for  the  plaintiff,  that  the  verdict  was 
regular,  and  the  plaintiff'  in  no  fault ;  for,  without  notice,  he  was 
not  obliged  to  produce  the  note.  Therefore  the  verdict  ought  not 
to  be  set  aside. 

The  court  thought  the  plaintiff  had  taken  an  unfair  advantage, 
contrary  to  justice  and  good  conscience.  That  the  rules  of 
practice  must  be  general;  but  he  who  abused  them  in  a  particu- 
lar case,  should  not  shelter  a  trick,  by  regularity.  The  plaintiff 
did  not  want  notice  to  produce  a  note  he  had  in  court,  and 
which  he  had  laid  in  the  declaration  as  his  ground  of  action.  Be- 
sides, he  took  a  verdict  for  the  price  of  the  goods;  though  he 
had  received  satisfaction,  the  evidence  of  which  was  in  his  own 
custody  and  suppressed. 

They  not  only  set  aside  the  verdict ;  but  set  it  aside  without 
payment  of  costs  and  declared,  "the  next  time  that  a  party 
should  obtain  a  verdict  in  like  manner,  by  an  unfair,  unconscion- 
able advantage,  without  trying  the  real  question,  they  would  set 
aside  the  verdict,  and  make  him  pay  the  costs." 

A  new  trial  being  ordered,  this  cause  was  tried  at  Guildhall, 
the  sittings  after  this  term,  and  the  defendant  had  a  verdict 
upon  the  merits,  to  the  satisfaction  of  everybody,  the  case  be- 
ing clear  beyond  a  doubt. 


COOKE  V.  BERRY. 

1  Wilsmi,  98.     [1745.] 

Assumpsit  upon  a  promissory  note,  defendant  pleaded  that 
the  plaintiff  accepted  of  some  chests  of  tea  in  satisfaction,  upon 
M'hich  issue  was  joined,  and  there  was  a  verdict  for  the  defend- 
ant. It  was  now  moved  on  behalf  of  the  plaintiff  by  Sir  John 
Strange  and  Mr.  Crowle  for  a  new  trial,  upon  an  affidavit  that 


730 


NEW    TRIALS. 


[Chap.  VL 


the  plaiiitili'  took  this  to  be  a  sham  plea,  and  that  he  had  a  let- 
ter under  the  defendant 's  own  hand,  wherein  it  appears  the 
defendant  had  disposed  of  the  tea  to  another  person,  and  where- 
in the  defendant  says  he  will  pay  the  plaintiff  his  money  due 
upon  the  note,  which  letter  the  plaintiff  did  not  produce  at  the 
trial,  thinking  the  plea  was  a  sham,  and  that  the  defendant  could 
not  possibly  prove  it. 

But  per  ciariam.  New  trials  are  never  granted  upon  the  mo- 
tion of  a  party,  where  it  appears  he  might  have  produced  and 
given  material  evidence  at  the  trial  if  it  had  not  been  his  own 
default,  because  it  would  tend  to  introduce  perjury,  and  there 
would  never  be  an  end  of  causes  if  once  a  door  was  opened  to 
this.  Suppose  in  a  scire  facias  upon  a  judgment,  the  defendant 
has  a  release,  he  is  summoned,  and  has  an  opportunity  of  plead- 
ing it,  and  does  not,  he  shall  never  have  an  audita  querela.  This 
is  a  very  strong  case  at  bar,  for  the  plaintiff  has  notice  of  the 
defense  of  the  defendant  in  his  plea,  and  ought  to  have  come 
prepared  to  falsify  it  at  the  trial.  And  Dennison,  J.,  said,  he 
remembered  a  case  of  a  horse  plea,  where  the  defendant  pleaded 
he  gave  the  plaintiff  a  horse  in  satisfaction ;  plaintiff  looked  upon 
it  as  a  horse  (or  sham)  plea  indeed,  but  the  defendant  at  the 
trial  proved  it  a  true  plea.  Rule  to  show  cause  why  there  should 
not  be  a  new  trial  was  discharged. 


BROADHEAD  v.  MARSHALL,  EX'R    OF  HAGKJET. 

2  Wm.  Blachstone,  955.     [1774.] 


Case  by  a  coaehmaker  for  a  bill  due  to  him  by  the  testator,  a 
West  Indian,  from  1767  to  1773.  He  had  delivered  two  bills, 
one  for  job-work  to  the  amount  of  £121,  and  for  £40,  "promised 
to  be  paid  if  any  gentleman  or  lady  would  say  that  a  coach 
which  he  made  for  the  testator  was  worth  £200,  and  that  Lady 
Ashton  said  it  was;"  total,  £161.  The  other  bill  was  for  £121, 
job-work,  and  £200  for  a  coach,  giving  credit  for  £160  received 
by  him  on  account  the  18th  of  March,  1772 ;  balance,  £161.  On 
this  last  bill  the  action  was  brought  in  Hilary  Term  last,  and 
tried  at  the  sittings  after  Easter  Term,  when  the  jury  found  a 
verdict  for  the  plaintiff;  damages  £161. 


Sec.    ].]  TURQUAND   V.    DAWSON.  731 

Davy  now  moved  for  a  new  trial,  on  the  affidavit  of  Ramsden, 
tiie  defendant's  attorney,  stating  that  the  defendant  sailed 
for  Barbadoes  on  the  20th  of  April,  last,  being  the  first  day  of 
Easter  Term.  That  since  the  trial  he  had  discovered  in  a  memo- 
randum-book of  the  defendant  a  receipt  in  these  words,  and 
signed  by  the  plaintiff: 

"Received  of  Mr.  James  Marshall,  on  the  18th  of  March,  1772, 
the  sum  of  £160  in  full  for  a  coach  made  for  William  Hagget, 
Esq.     per 

£160.  Thomas  Broadhead." 

(Marshall  was  an  agent  of  Hagget,  and  managed  his  affairs 
in  his  lifetime,  and  his  wife  was  constituted  his  executor  at  his 
decease  in  July,  1773.)  Ramsden  further  swore,  that  at  the 
time  of  the  trial  he  did  not  know  that  he  had  such  receipt  in  his 
custody,  nor  that  any  receipt  had  been  given  by  the  plaintiff 
to  the  defendant,  or  the  said  Mr.  Hagget,  on  any  account  what- 
soever. 

Whitaker  and  Walker  showed  cause.  But  on  the  special  cir- 
cumstances of  the  case,  and  the  discovery  of  the  new  and  very 
material  evidence  above  stated,  the  court  made  the  rule  absolute 
for  a  new  trial.  But  the  next  day,  on  the  plaintiff's  agreeing 
to  remit  £40  of  the  damages,  the  court,  by  consent,  discharged 
the  rule. 


TURQUAND  v.  DAWSON. 

1  Crompton,  Meeson  &  Roscoe,  709.     [1835.] 

Assicm.psit  for  goods  sold  and  delivered.  Plea:  The  general 
issue.  At  the  trial,  before  Taunton,  J.,  at  the  last  assizes  for 
the  county  of  Derby,  the  plaintiff'  was  nonsuited,  owing  to  the 
absence,  as  it  was  contended,  of  one  Bosworth,  a  material  wit- 
ness. It  appeared  that  previously  to  the  trial,  which  took  place 
on  Thursday,  the  last  day  of  the  assizes,  there  had  been  a  nego- 
tiation between  the  parties  for  the  settlement  of  the  action,  but 
that  such  negotiation  went  off  on  the  Wednesday,  and  that  the 
plaintiff  on  that  day  was  aware  that  the  evidence  of  Bosworth 
would  be  required.  He  was  accordingly  sent  for,  but  his  resi- 
dence being  at  Manchester,  he  did  not  arrive  until  after  the 


732  NEW   TRIALS.  [ChAP.    VI. 

trial  had  taken  place,  and  the  assizes  terminated,  on  the  Thurs- 
day. In  Michaelmas  Term,  Whitehurst  obtained  a  rule  to  show 
cause,  Avhy  the  nonsuit  should  not  be  set  aside  and  a  new  trial 
had,  on  the  ground,  amongst  others,  that  by  the  fraud  and  prac- 
tice of  the  defendant's  attorney,  the  plaintiff  had  been  prevented 
from  securing  the  attendance  of  Bosworth  at  the  trial. 

Lord  Abinger,  C.  B. — The  plaintiff,  under  the  circumstances 
stated,  should  have  applied  to  the  judge  to  postpone  the  trial 
of  the  cause ;  and  the  rule  that  such  an  application  shall  not  be 
granted  at  the  request  of  the  plaintiff,  is  not  so  inflexible  but 
that,  under  peculiar  circumstances,  it  may  be  departed  from.  If 
the  learned  judge  had  refused  to  grant  the  application,  the 
plaintiff  might  then  have  withdrawn  the  record.  But  he  can- 
not be  permitted  to  take  his  chance  of  success  by  trying  the 
cause  first,  and  then  obtaining  a  new  trial  in  case  of  failure. 

Rule  disclmrged.^ 


GARDNER  v.  MITCHELL. 

6  Pickering,  113.     [1828.] 

At  the  term  of  this  court  held  at  Nantucket  in  July,  1827, 
the  plaintiffs  recovered  a  verdict  for  $5,337,  in  an  action  brought 
for  an  alleged  breach  of  contract  on  the  sale  of  two  parcels  of 
oil,  one  of  1,000  barrels,  the  other  of  50,000  gallons,  which  oil 
was  warranted  by  the  defendant  to  contain  twenty-eight  parts 

1  Sheldon,  J.,  in  Kendall  v.  Lim-  testimony    of   this   witness,    instead 

berg,  69  111.  355:  of   voluntarily   going  into   the   trial 

"It  is  lastly  urged  that  the  court  without  it.  And,  as  to  all  the  newly 
erred  in  not  granting  a  new  trial,  discovered  testimony,  it  is  not  con- 
on  the  ground  of  newly  discovered  elusive  in  its  character,  and  is  mere- 
evidence,  ly  cumulative,  and  contradictory  of 

"As   to   Williams,   who  was  with  plaintiff's    witnesses,   and    does   not 

defendant  at  the  time  of  the  alleged  afford  ground  for  a  new  trial,  ac- 

arrest,  his  testimony  was  known  to  cording  to  the  well-settled  rule  upon 

defendant  previous   to   the  time   of  the    subject.      Smith    v.    Shultz,    1 

the   trial,   and   it  is   only   his   place  Scam.  491;   Martin  v.  Ehrenfels,  24 

of   residence   that   has   been   diseov-  lU.   187;    Adams  v.  The  People,  47 

ered  since  the  trial.     The  defendant  111.  376. 

should  have  made  an  application  for  ' '  The      judgment      will      be      af- 

a    continuance,    on    account    of    not  firmed. ' ' 
having    been    able    to    procure    the 


Sec.    1.]  GARDNER   V.    MITCHELL.  733 

in  a  hundred  of  head  matter,  and  to  be  of  a  fair  merchantable 
quality.  The  plaintiffs  introduced  evidence  tending  to  show  that 
the  oil  delivered  was  deficient  in  quantity  and  quality,  and  that 
it  did  not  contain  the  stipulated  proportion  of  head  matter.  The 
defendant  now  moved  for  a  new  trial,  on  the  ground  of  newly 
discovered  evidence.     *     *     * 

Per  curiam.  The  bar  are  aware  that  the  court  look  with 
jealousy  upon  applications  like  this,  as  it  has  become  so  common 
to  apply  for  a  new  trial  because  the  verdict  was  against  evi- 
dence, or  on  account  of  evidence  discovered  since  the  trial,  and 
it  is  so  easy  to  procure  new  evidence  to  suit  the  case.  And  yet 
it  is  absolutely  necessary  that  the  court  should  have  a  control 
over  verdicts,  for  sometimes  they  seem  to  be  given  unaccountably 
against  the  manifest  justice  of  the  case. 

This  action  is  brought  upon  a  contract  of  sale  of  a  quantity  of 
oil,  with  a  warranty  that  it  should  be  of  a  merchantable  quality, 
and  should  contain  a  certain  proportion  of  head  matter.     It  is 
alleged  that  the  contract  was  not  performed  in  regard  either  to 
the  quantity  or  the  quality  of  the  oil  delivered.     The  court  have 
been  obliged  to  look  into  the  whole  evidence,  in  order  to  see  the 
applicability   of  that   which  has  been  newly   discovered.     The 
plaintiffs  introduced  evidence  which  seemed  very  strong,  and 
if  it  had  been  believed,  the  damages  should  have  been  $20,000 
or  $30,000  instead  of  $5,000.     On  the  other  hand,  it  appeared 
that  after  the  oil  had  been  partly  manufactured,  so  that  the 
plaintiffs  could  have  ascertained  its  quality,  they  entered  into 
a  reference  solely  in  regard  to  the  quantity  delivered,  nothing 
being  said  of  the  quality.     Two  persons,  one  appointed  by  the 
plaintiffs  and  the  other  by  the  defendant,   were  employed  to 
gauge  the  oil,  and  in  gauging  it  is  quite  easy  to  ascertain  the 
quality.    There  was  evidence  likewise  that  if  the  oil  had  been  as 
bad  as  it  was  represented  by  the  plaintiffs,  it  would  have  been 
impossible  to  manufacture  it  into  candles;  nevertheless  it  was 
all  sold   before   the   trial,   and   the   purchasers  have   made   no 
application  to  the  plaintiffs  on  account  of  its  bad  quality.     We 
should  have  considered  it  at  least  a  balanced  case,  notwithstand- 
ing the  strong  evidence  on  the  part  of  the  plaintiffs.    Then  comes 
the  recently  discovered  evidence,  upon  M'hieh  the  application  for 
a  new  trial  is  grounded.     This  is  somewhat  of  a  critical  matter, 
as  a  party  may  so  readily  obtain  new  evidence  to  supply  former 
deficiencies.     Still   the   court   ought   not   to  shut  their  eyes  to 


734  NEW   TRIALS.  [ChAP.    VI. 

injustice  on  account  of  facility  of  abuse  in  cases  of  this  sort. 
The  evidence  now  brought  forward  is  of  confessions  of  the 
plaintiffs,  and  the  question  is  whether  it  is  new  or  only  cumula- 
tive. If  only  cumulative,  it  does  not  furnish  a  sufficient  cause 
for  a  new  trial.  This  is  the  ground  taken  in  New  York,  and  the 
reason  is  that  the  party  should  have  taken  care  to  produce 
evidence  enough  to  establish  his  point.  But  this  evidence  is  of  a 
different  character.  As  to  the  body  oil,  which  is  made  a  subject 
of  complaint,  there  is  a  confession  of  one  of  the  plaintiffs  that  it 
was  as  good  as  he  expected.  This  is  a  new  fact  which  was  not 
before  in  the  case.  The  verdict  was  general,  and  apparently 
injustice  has  been  done ;  and  this  being  upon  the  trial  a  nicely 
balanced  case,  we  think  it  should  go  again  before  the  jury,  with 
this  new  evidence. 

New  trial  granted. 


I 


WRIGHT  V.  SOUTHERN  EXPRESS  CO. 

80  Federal  Rep.  85.     [1897.] 

Hammond,  J.  (after  stating  the  facts).  Being  dissatisfied 
with  the  verdict,  which  on  the  proof  was  not  expected  by  the 
court,  and  at  the  same  time  seriously  averse  to  interfering  with 
the  right  of  trial  by  jury  merely  because  the  court  is  disappointed 
by  the  verdict,  the  ground  of  newly  discovered  testimony  offers 
a  plausible  and  somewhat  tempting  excuse  to  direct  a  new  trial. 
If,  however,  that  were  the  only  ground,  it  would  be  refused,  for 
the  proof  offered  does  not  at  all  justify  a  new  trial  for  that 
reason,  when  we  carefully  scrutinize  it.  It  may  be  doubtful  if 
there  has  been  any  judicial  adjudication  of  the  plaintiff's  in- 
sanity, and  probably  it  was  only  an  administrative  determination, 
with  judicial  sanction,  as  between  hospitals.  The  affidavits  do  not 
disclose  the  facts  with  sufficient  fullness  to  exhibit  the  technical 
character  of  the  proceeding;  but,  suppose  there  were  an  ad- 
judication as  upon  a  writ  de  lunatico  inquirendo,  it  ought  to  have 
been  produced  at  the  trial.  Due  diligence  is  required  in  all  cases, 
and  testimony  is  not  newly  discovered,  in  the  sense  of  the  law 
of  new  trials,  merely  because  the  party  did  not  know  of  it  at 
the  time.  There  must  be  more  than  this,  and  it  must  appear 
that  by  due  diligence  it  could  not  have  been  discovered,  or, 


Sec.  2.]  Reynolds  v.  simonds.  735 

rather,  that  after  due  diligence  it  had  not  been  discovered,  in 
time  for  the  trial.  There  was  known  to  be  a  question  about 
the  plaintiff's  sanity,  and  the  fact  that  it  was  rumored  that  she 
had  been  in  an  asylum  was  well  known  to  the  defendant  com- 
pany. It  was  contented  with  such  proof  as  was  given  at  the 
trial,  and  did  not,  as  it  should  have  done,  follow  up  the  plaintiff's 
life,  and  discover,  as  could  easily  have  been  done,  the  facts  about 
the  confinement  in  an  asylum ;  the  proceedings,  judicial  or  other, 
upon  which  it  was  had;  her  release  on  habeas  corpus,  if  such 
were  the  fact;  the  nature  of  her  malady,  and  all  there  was 
or  is  concerning  it.  That  this  was  not  done  is  obviously  a  want 
of  due  diligence,  because,  in  the  very  nature  of  it,  the  facts 
could  not  be  concealed  from  ordinary  inquiry  in  and  about  the 
places  where  she  had  been,  and  of  the  persons  who  knew  of  her 
life  and  its  surroundings.  In  Carr  v.  Gale,  1  Curt.  384,  5  Fed. 
Cas.  116,  Mr.  Justice  Curtis  says  that  "it  cannot  be  considered 
as  the  use  of  due  diligence  to  suffer  a  trial  to  proceed,  and  after 
a  verdict  against  him  proceed  to  make  the  inquiries  which  he 
might  and  ought  to  have  made  before. ' '  Price  v.  Jones,  3  Head, 
84;  Martin  v.  Nance,  Id.  649;  Shipp  v.  Suggett,  9  B.  Mon.  5 
Moreover,  in  this  case,  as  in  that,  the  testimony  offered  is  only 
cumulative.  The  court  can  veil  see  how  much  more  potential 
it  would  have  been  if  the  def'  ndant  had  proved  that  the  plain- 
tiff had  been  adjudicated  a  Iv  latic,  had  been  in  an  asylum,  and 
had  left  it  unimproved  in  the  opinion  of  the  asylum  authorities, 
and  how  much  more  effective  ^  his  proof  may  have  been  with  the 
jury  than  the  opinions  of  the  clergymen  and  one  of  her  own 
doctors  that  she  was  "crazy"  or  "unbalanced,"  etc.;  but  still 
it  would  have  had  no  other  than  a  cumulative  effect  in  that 
direction  upon  the  issue  of  the  condition  of  her  mind.     *     *     * 


Section  2.    Motion  or  Application. 

REYNOLDS  v.  SIMONDS. 

Barnes'  Notes,  446.     [1740.] 

Skinner  for  Defendant  moved  for  a  new  Trial  after  the  first 
four  Davs  of  Term.    Per  Cur.:   The  Application  comes  too  late. 


736 


NEW   TRIALS. 


[Chap.  VI. 


We  have  determined  that  these  Motions  shall  never  be  received 
after  the  four  Days.^    No  Rule. 


BIRT  V.  BARLOW. 

1  Douglas,  171.     [1779.] 

This  was  an  action  of  trespass  and  assault,  for  criminal  con- 
versation with  the  plaintiff's  wife.  It  was  tried  before  Black- 
stone,  Justice,  at  the  last  Assizes  for  Kent,  when,  by  the  direc- 
tion of  the  judge,  the  plaintiff  was  non-suited. 

On  Monday,  the  26th  of  April,  Rous  moved  for  a  rule  to  show 
cause  why  the  non-suit  should  not  be  set  aside,  and  a  new  trial 
granted. 

Wednesday,  the  21st  of  April,  was  the  first  day  of  the  term, 
and,  by  the  practice  of  this  court,  all  new  trials  (in  causes  tried 
in  vacation),  must  be  moved  for  within  four  days  of  the  begin- 
ning of  the  term,  including  the  first ;  so  that  Saturday,  the  24th 
of  April,  was  the  last  day  for  moving.  However,  Rous  having 
stated  that  he  had  understood  that  the  four  days  were  reckoned 
exclusive  of  the  first,  and  Blackstone,  Justice,  having  desired 
at  the  trial,  that  the  opinion  of  the  court  should  be  taken,  the 
court  entertained  the  motion,  which  was  founded  on  the  rule  of 
a  misdirection  in  point  of  evidence;  and  the  rule  was  granted.^ 


iMo.  E.  S.  1909,  §2025: 
"Motions  for  a  new  trial  to  be 
filed,  when. — All  motions  for  new 
trials  and  in  arrest  of  judgment 
shall  be  made  within  four  days 
after  the  trial,  if  the  term  shall  so 
long  continue;  and  if  not,  then  be- 
fore the  end  of  the  term  (E.  S. 
1899,  §803)." 

1  See  also  Eex.  v.  Holt,  5  Term 
Eep.  436;  Williams  v.  Judges,  5  Mo. 
248.  But  in  order  to  obtain  a  re- 
view under  the  statute  of  the  order 


refusing  a  new  trial,  the  motion 
must  be  filed  within  the  proper  time. 
Bollinger  v.  Carrier,  79  Mo.  318. 
At  common  law  it  was  error  to  en- 
ter judgment  before  the  expiration 
of  the  four  days.  Standfast  v. 
Chamberlaine,  3  Salk.  215;  but  un- 
der the  modern  practice  it  is  not  un- 
usual to  enter  judgment  upon  the 
return  of  the  verdict,  and  thereafter 
set  it  aside  if  the  motion  is  sus- 
tained. 


Sec.  2.]  gant  v.  shelton.  737 

GANT  V.  SHELTON. 

3  B.  Monroe  (Kij.),  420.     [1843.] 

Chief  Justice  Ewing  delivered  the  opinion  of  the  court. 

This  is  an  action  of  assumpsit,  for  the  price  of  a  horse  pur- 
chased by  Gant,  of  Shelton,  in  the  fall  of  1840,  at  $100,  "to 
be  paid  for  when  Van  Buren  should  get  the  electoral  vote  of 
Virginia  for  President." 

The  defendant  pleaded  three  pleas:     *     *     * 

Upon  these  pleas  issues  were  taken,  and  a  verdict  and  judg- 
ment for  the  plaintiff,  and  the  defendant  has  appealed  to  this 
court. 

There  are  numerous  palpable  errors  in  this  record,  some  of 
which  we  will  notice. 

The  Circuit  Court  refused  to  hear  a  motion  for  a  new  trial, 
suggesting  as  the  only  reason  of  the  refusal,  that  it  was  not 
made  in  time.  We  know  of  no  rule  of  law  in  this  State  which 
precludes  a  party,  who  conceives  himself  injured  by  the  finding 
of  the  jury,  from  moving  the  court  for  a  new  trial  at  any  time 
during  the  term  at  which  the  verdict  is  found. ^ 

We  would  not  say  that  the  court  might  not  establish  a  rule 
of  practice,  which  Avould  require  such  motions  to  be  made  in 
some  reasonable  time,  while  the  evidence  and  steps  taken  in  the 
cause  were  fresh  in  the  recollection  of  the  court  and  counsel ; 
yet  such  rule,  if  made,  should  be  spread  upon  the  records  of  the 
court,  or  promulgated  in  some  form,  so  as  to  apprise  litigants 
or  their  counsel  of  its  existence.  No  such  rule  is  shown,  in  this 
record,  to  have  been  made  or  promulgated  in  any  form.     *     *     * 


C.  &  N.  W.  RY.  V.  DIMICK. 

96  Illinois,  42.     [1880.] 

Mr.  Justice  Craig  delivered  the  opinion  of  the  court: 
This  was  an  action  on  the  case,  brought  by  appellee,  admin- 
istrator of  the  estate  of  Gilbert  H.  Dimick,  deceased,  against 
appellant,  to  recover  damages  for  the  death  of  the  deceased, 
caused  by  the  negligence  of  appellant's  servants. 

1  See,    also,    Felton    v.    Spiro,    78 
Fed.  576. 

H.  T.  P.— 47 


738  NEW   TRIALS.  [ChAP.   VI. 

On  the  trial  the  jury  returned  a  verdict  in  favor  of  plaintiff 
for  $3500,  and  under  the  statute  then  in  force  several  special 
findings  on  questions  of  fact  were  also  returned.  The  court  set 
aside  the  general  verdict,  and  rendered  judgment  in  favor  of 
the  defendant,  on  the  ground  that  the  special  findings  were  in- 
consistent with  the  general  verdict.  From  that  decision  the 
plaintiff  prosecuted  an  appeal  to  this  court,  where  the  judgment 
of  the  Circuit  Court  was  reversed  and  the  cause  remanded. 
Dimick  v.  Chicago  and  Northwestern  Railroad  Co.,  80  111.  338. 
After  the  cause  was  remanded  and  placed  upon  the  docket  in 
the  Circuit  Court,  the  court,  on  motion,  rendered  judgment  in 
favor  of  the  plaintiff,  on  the  verdict,  for  $3500.  The  defendant 
then  entered  its  motion  for  a  new  trial,  which  was  overruled, 
and  an  appeal  taken.     *     *     * 

It  is,  however,  contended  by  appellee  that  the  questions  pre- 
sented by  appellant  can  not  be  considered  by  the  court,  for  two 
reasons:  First,  the  motion  for  a  new  trial  was  not  made  in 
time ;  second,  that  the  motion  for  judgment  on  the  special  find- 
ings was  a  waiver  of  the  right  to  move  for  a  new  trial.  The 
statute  provides,  where  either  party  desires  to  move  for  a  new 
trial,  that  the  motion  shall  be  made  before  final  judgment  be 
entered,  or  during  the  term  it  is  entered.  The  motion  in  this 
case  was  made  at  the  term  and  before  final  judgment  was  ren- 
dered on  the  general  verdict.  It  is  true,  a  judgment  had  been 
entered  at  a  previous  term  in  appellant's  favor  on  the  special 
findings.  At  that  time  appellant  did  not  want  a  new  trial.  It 
would  have  been  but  an  idle  ceremony  for  it  then  to  have  moved 
for  a  new  trial.  No  judgment  had  been  rendered  against  it,  and 
it  was  satisfied  with  the  judgment  of  tlie  court.  When,  however, 
that  judgment  was  reversed,  and  a  judgment  was  sought  on  the 
general  verdict,  then  the  motion  was  made  for  a  new  trial,  and 
we  think  it  was  in  apt  time. 

In  regard  to  the  next  question,  we  perceived  no  reason  to  sus- 
tain the  position  that  appellant  waived  its  right  to  move  for  a 
new  trial  by  moving  for  judgment  on  the  special  findings.  Our 
statute  is,  in  substance,  like  the  statute  in  Indiana  in  regard  to 
special  findings. 

The  Supreme  Court  of  Indiana,  in  passing  upon  a  question 
similar  to  this,  in  Brennan  v.  May,  42  Ind.  102,  said:  "They 
were  answers  of  the  jury  to  particular  questions  of  fact  pro- 
pounded to  them,  and  before  moving  for  a  new  trial  the  appel- 


Sec.  2.]  l.  &  n,  ry.  co.  v.  mccoy.  739 

lants  moved  for  judgment  in  their  favor  on  the  special  findings, 
which  motion  was  overruled.  The  counsel  for  appellee  claim  that 
the  motion  first  made  cut  off  the  motion  for  a  new  trial.  Several 
authorities  are  cited  to  show  that  a  motion  in  arrest  of  judg- 
ment cuts  off  a  motion  for  a  new  trial,  but  we  are  not  aware  of 
any  holding  that  a  motion  for  judgment  in  one's  favor  on  the 
special  finding  of  the  jury  works  such  a  result.  We  think  where 
there  is  a  general  verdict  with  special  findings  by  the  jury  in 
answer  to  questions  propounded  to  them,  the  party  against  whom 
the  general  verdict  is  returned  may  move  for  judgment  in  his 
favor  on  the  special  findings  notwithstanding  the  general  ver- 
dict, without  losing  his  right  to  move  for  a  new  trial  in  case  his 
motion  for  judgment  should  be  overruled.  The  doctrine  that  a 
motion  in  arrest  of  judgment  cuts  off  a  motion  for  a  new  trial, 
though  well  settled  in  this  State,  is  somewhat  technical,  and  we 
are  not  disposed  to  extend  it  to  cases  of  motion  like  that  under 
consideration. ' ' 

This  case  seems  to  be  directly  in  point,  and  we  have  no  hesi- 
tation in  approving  the  doctrine  therein  announced. 

For  the  error  indicated  the  judgment  will  be  reversed,  and 
the  cause  remanded. 

Judgment  re  versed. 


L.  &  N.  RY.  CO.  V.  McCOY. 
81  Kentucky,  403.     [1883.] 

Chief  Justice  Hargis  delivered  the  opinion  of  the  court. 

In  the  beginning  collision  of  counsel  renders  it  necessary  to 
determine  what  questions  are,  by  the  grounds  for  new  trial  and 
assignment  of  errors,  presented  to  the  court  for  its  decision. 

According  to  Section  340,  Civil  Code,  there  are  eight  general 
causes  for  granting  a  new  trial.  Some  of  these  causes  are  stated 
in  that  section  with  sufficient  particularity  to  be  followed  spe- 
cifically in  the  written  grounds  which  may  be  filed  by  a  party, 
but  others  are  so  generic  that  the  language  of  the  Code,  if  liter- 
ally pursued,  would  not  enable  the  court  to  know,  with  reason- 
able certainty,  what  particular  error  was  complained  of.  This 
is  especially  the  case  with  the  eighth  subsection,  which  was  in- 
tended "to  cover  all  errors  to  which  exceptions  might  be  taken. 


740  NEW   TRIALS.  [ChAP.   VI. 

not  embraced  by  some  one  of  the  preceding  seven  subsections." 
(McLain  v.  Dibble  &  Co.  13  Bush,  298.) 

That  case  holds  correctly  that  the  language  of  the  eighth 
subsections,  which  authorizes  a  new  trial  for  "error  of  law  oc- 
curring at  the  trial,  and  excepted  to  by  the  party  making  the 
application,"  was  the  generalization  of  the  law-makers,  and  not 
sufficiently  specific  to  point  out  the  particular  error  which  might 
be  intended  by  the  written  grounds.  That  subdivision  makes 
every  error  of  law  which  may  be  committed,  and  properly  ex- 
cepted to  during  the  trial,  a  cause  for  a  new  trial.  Hence,  when 
the  cause  for  new  trial  is  embraced  by  it,  the  particular  ground 
or  cause  must  be  named  in  the  written  grounds  with  such  a 
degree  of  certainty  that  a  person  of  good  understanding  may 
know  what  is  meant.  Among  other  grounds  for  a  new  trial,  the 
appellant  relied  upon  the  following: 

Fifth.  The  court  erred  in  law  in  refusing  to  submit  to  the 
jury  the  questions  propounded  by  defendant's  counsel. 

Seventh.     The  court  erred  in  the  instructions  to  the  jury. 

These  grounds  are  embraced  by  the  eighth  subdivision  of  Sec- 
tion 340  of  the  Code,  and,  as  we  think,  are  suffieientlj^  specific 
to  indicate  the  errors  of  which  the  appellant  complains.  There 
were  only  three  questions  which  appellant  asked  to  be  pro- 
pounded, and  only  two  instructions  which  were  given  by  the 
court  to  the  jury.  The  questions  and  instructions  all  relate  to 
negligence,  its  degrees,  character,  and  by  whom  committed,  and, 
it  seems,  should  be  considered  together  in  order  to  understand 
the  meaning  of  the  court  beloAv.  If  more  particularity  were  re- 
quired in  stating  grounds  for  new  trial  than  the  appellant  has 
used,  the  courts  must  finally  become  entangled  in  the  uncer- 
tainty which  generally  belongs  to  human  expression,  and  as  each 
case  is  presented  to  different  judges  whose  minds  differ  in  the 
understanding  of  the  force  or  meaning  of  language,  the  rule 
regarding  the  sufficiency  of  grounds  for  new  trial  will  be  found 
to  vary  as  much  as  their  mental  conceptions.  This  vague  and 
misgiving  state  of  the  rule,  which  should  be  uniform  and  cer- 
tain, as  far  as  the  subject  will  admit,  was  never  contemplated 
by  the  lawmakers.  The  object  of  the  motion  and  grounds  for 
new  trial  is  to  call  the  attention  of  the  trial  court  to  any  error 
that  may  have  been  committed  at  the  trial,  and  to  allow  an  op- 
portunity, without  the  expense  and  delay  of  an  appeal,  of  cor- 
recting it.     This  being  so,  all  that  is  necessary  in  any  case  is  to 


Sec.  2.]  l.  &  n.  ry.  go.  v.  mccoy,  741 

use  such  plaiu  and  intelligible  language  in  the  grounds  for  new 
trial  as  indicates,  points  out,  or  shows  to  the  court,  with  rea- 
sonable and  ordinary  certainty,  the  particular  errors  which  are 
complained  of,  so  as  to  enable  the  court,  by  the  exercise  of  proper 
attention,  to  understand  what  errors  are  meant,  and  to  recon- 
sider the  facts  or  law  out  of  which  they  are  alleged  to  have 
grown.  Unreasonable  particularity  or  technical  accuracy  in  the 
description  of  the  errors,  is  not  required  or  practicable,  either 
in  the  grounds  for  new  trial  or  the  assignment  of  errors. 

To  describe  each  error,  with  every  particularity  belonging  to 
it,  would  swell  the  grounds  for  new  trial,  and  the  assignment  of 
errors  beyond  their  necessary  or  proper  compass. 

The  law  does  not  mean  that  the  grounds  for  new  trial  shall 
contain  a  particular  description  of  the  errors  relied  on,  but  that 
the  particular  errors  shall  be  simply  pointed  out  or  indicated  in 
a  common-sense  way. 

Often,  and  most  generally,  a  few  well  chosen,  substantive,  or 
strong  words  referring  to  the  subject,  and  the  action  of  the 
court  thereon,  will  point  out  or  name  the  error  or  errors  as  well 
as  the  most  lengthy  description.  The  court  could  hardly  fail 
to  know  what  errors  the  appellant  relied  on  by  the  grounds  for 
new  trial  above  quoted. 

There  is  no  objection  to  pointing  out  or  designating  each  in- 
struction and  each  question  conceived  to  be  erroneously  given 
or  refused,  and  this  is  certainly  a  safe  course  to  pursue;  but 
where  the  (juestions  or  instructions  relate  to  the  same  general 
question  and  its  various  phases,  it  is  nearly  always  important 
to  take  a  view  of  the  whole  in  order  to  understand  the  defects 
or  omissions  of  any  one  of  them,  and  a  ground  for  new  trial 
referring  to  them  in  the  plural  number  is  sufficiently  specific,^ 

1  Graves,    J.,   in   Collier   v.    Lead  time  of  the  exclusion  or  admission 

Co.,    208  Mo.    246:  of  such  evidence,   proper  objections 

"It    is    not    necessary    to    review  were    made    and    exceptions    saved, 

the    many    cases    cited    from    other  and  this  followed  by  a   general  as- 

jurisdictions.      The   practice   in   this  signment  of  error  in  this  regard  in 

State  has  never,  of  recent  years,  re-  the    motion    for    new    trial.      Such 

quired  the  motion  for  new  trial  to  have   been    the    last   expressions   of 

point    out    specifically    the    evidence  this  court,  and  we  see  no  good  rea- 

excluded    or    evidence    admitted,    al-  son    for    a    further    review    of    the 

leged   to  have  been   erroneously  ex-  question." 

eluded     or     admitted.       Under    our  But  see  Simmons,  C.  J.,  in  Gate 

practice    it   is    suflScient,    if   at    the  City  Gas.  Co.  v.  Farley,  95  Ga.  796: 


742  NEW    TRIALS.  |('haP.    VI. 

Where  there  are  several  issues  and  various  questions  of  a  dif- 
ferent nature,  then,  it  may  be,  a  general  reference  to  the  instruc- 
tions or  questions  would  not  be  specific  enough  to  guide  the  mind 
of  the  court  to  the  supposed  error.  In  such  instances  sharp 
practice,  or  an  effort  to  embrace  some  error  by  an  indefinite  or 
too  general  ground,  without  descending  to  particulars,  could  be 
discovered  with  but  little  trouble,  and  cut  off  by  the  application 
of  the  rule  in  the  sense  we  have  attempted  to  explain  it  above. 

The  assignment  of  errors,  however,  comprehends  several  al- 
leged errors,  which  were  not  alluded  to  in  the  grounds  for  new 
trial,  and  they  will  not,  therefore,  be  considered. 

But  those  quoted,  and  some  other  grounds  which  it  will  be 
necessary  to  mention  in  this  opinion,  are  specified  with  ordi- 
nary and  sufficient  particularity,  and  will  be  examined.     *     *     * 


MOSS  v.  VROMAN. 
5  Wisconsin,  147.     [1856.] 

By  the  court.  Smith,  J.  The  only  exception  taken  to  the  rul- 
ing of  the  court  below  in  this  case,  and  the  only  error  assigned 
is,  upon  overruling  the  motion  for  a  new  trial. 

The  motion  was  predicated  upon  the  ground  of  surprise,  and 
of  newly  discovered  evidence,  but  does  not  disclose  such  evi- 
dence. Upon  this  latter  ground,  therefore,  the  motion  should 
fail.  Whenever  a  motion  for  a  new  trial  is  based  upon  newly 
discovered  evidence,   that  evidence   should  be  particularly  set 

"In  the  present  case  there  are  dence  to  the  jury  against  the  de- 
thirty- two  grounds  in  the  motion  mand  of  the  defendant.'  'Because 
for  a  new  trial,  several  of  which  are  the  presiding  judge  delivered  to  the 
wholly  superfluous,  being  so  vague,  jury  erroneous  instructions  against 
general  and  indefinite  as  not  to  in-  the  defendant  on  material  points.' 
dicate  the  errors  alleged  to  have  'Because  the  court  refused  to  give 
been  committed;  such,  for  example,  pertinent  legal  instructions  to  the 
as  the  following:  'Because  the  jury  in  the  language  requested  by 
court  erred,  in  that  the  court  ille-  the  defendant,  such  request  having 
gaily  withheld  from  the  jury  ma-  been  submitted  in  writing.'  We 
terial  evidence  against  the  demand  have  frequently  held  that  such 
of  the  defendant.'  'Because  of  the  grounds  as  these  will  not  be  con- 
illegal    admission    of    material    evi-  sidered. " 


Sec.  2.]  Cunningham  v.  bell.  74:! 

forth,  so  that  the  court  may  judge  of  its  materiality.  This  was 
not  done,  and  the  motion,  for  this  assigned  cause,  was  properly 
overruled.^ 

In  regard  to  the  allegation  of  surprise,  we  are  not  able  to 
perceive  upon  what  it  is  in  fact  predicated.  It  appears  that 
the  evidence  upon  which  the  plaintiff  below  recovered  was  his 
book  account  verified  by  his  oath.  This  was  objected  to,  and 
received  "for  what  is  was  worth,"  but  no  exception  was  taken 
to  its  reception  in  this  manner.  It  was  equivalent  to  deciding 
that  the  testimony  was  competent  in  kind,  and  the  weight  or 
effect  thereof  was  to  be  left  to  the  jury.  No  exception  w'as  taken 
to  this  ruling,  and  the  presumption  is  that  it  was  acquiesced  in 
by  the  defendant  below.     *     *     * 


CUNNINGHAM  v.  BELL. 

5  Mason  (U.  8.  C.  C),  161.     [1828.] 

Assumpsit  brought  by  the  plaintiffs  (John  A.  Cunningham 
and  William  J.  Loring),  who  are  merchants  in  Boston,  Massa- 
chusetts, against  the  defendants  (James  C.  Bell  and  others), 
who  are  merchants  in  Leghorn,  in  Tuscany,  for  breach  of  orders 
as  factors  and  commission  merchants.  The  declaration  con- 
tained various  counts.  Plea,  the  general  issue.  The  material 
facts  as  they  appeared  at  the  trial,  upon  the  points  of  law  in 
controversy,  are  summed  up  in  the  charge  of  the  court;  and  it 
is  thought  unnecessary  to  report  them,  or  give  them  more  in 
detail.  *  *  *  After  the  verdict,  a  bill  of  exceptions  was 
tendered  to  the  court  and  signed ;  and  a  motion  for  a  new  trial 
was  also  made  by  the  counsel  for  the  defendants.  On  its  com- 
ing on  for  argument 

Story,  Circuit  Justice,  said :  The  motion  for  a  new  trial  can- 
not be  entertained,  according  to  the  practice  of  the  court,  unless 
the  bill  of  exceptions  is  waived.^     The  party  has  his  election, 

1  See    King.    v.    Gilson,    206    Mo.  Mr.   Justice   McLean,   in   U.   S. 

264,  where  the  trial  court  sustained  v.   Hodge,  6   Howard    (U.   S.   Sup.) 

the  motion.  279:     "The  motion  for  a  new  trial 

1  Accord,  Doe  v.  Roberts,  2  Chitty,  was  not  a  waiver  of  a  writ  of  er- 

272    (1818).  ror.     In  some  of  the  circuits  there 


744  NEW   TRIALS.  [ChAP.    VI. 

either  to  proceed  upon  a  writ  of  error  to  the  Supreme  Court, 
in  order  to  have  it  determined  there  whether  the  points  were 
correctly  ruled  at  the  trial;  or  waiving  that  remedy,  to  apply 
here  for  a  new  trial.  But  he  cannot  be  permitted  to  proceed 
both  ways.  The  ground  for  granting  a  new  trial  is,  that  the 
party  is  without  other  remedy.  But  that  is  not  the  case,  where 
he  files  a  bill  of  exceptions ;  for  upon  that  he  can  take  the  opin- 
ion of  the  Supreme  Court.  It  is  most  convenient  for  the  due 
administration  of  justice,  that  where  a  party  means  to  apply 
to  the  appellant  court  for  a  final  decision  of  the  law  of  his  case, 
he  should  do  so  with  the  least  delay.  The  other  party  ought  not 
to  be  burthened  with  the  expenses  of  successive  trials,  until  the 
law  of  the  case  is  definitely  settled  by  the  final  tribunal. 

Motion  overruled. 


HUMPHREY'S  ADM'R  v.  AVEST'S  ADM'R. 

3  Randolph  (Va.),  516.     [1825.] 

Judge  Co.vLTER  delivered  the  opinion  of  the  court. 

The  court  is  of  opinion,  that  the  only  question  for  the  con- 
sideration of  the  court,  on  a  demurrer  to  evidence,  is  whether 
the  evidence  supports  the  issue  or  not ;  and  the  judgment  is  that 
it  does,  or  does  not,  support  it.  After  the  demurrer  is  joined, 
the  jury  may  either  be  discharged,  and  (if  the  judgment  be 
that  the  evidence  does  support  the  issue)  a  writ  of  inquiry  of 
damages  is  awarded ;  or  the  jury  then  impaneled  may  go  on  to 
assess  conditional  damages. 

But  in  either  case,  the  question  is  with  the  jury,  not  with  the 
court,  as  to  the  question  of  damages,  subject,  as  in  all  other 
cases,  to  the  superintending  control  of  the  court,  to  grant  a  new 
trial  in  case  the  damages  are  excessive.  That,  however,  rests 
with  the  court,  before  whom  the  trial  was  had,  and  that,  too, 
upon  a  motion  to  that  court,  for  a  new  trial ;  there  being  no  case 
in  which  that  court  is  bound,  ex  mero  motu,  and  without  mo- 
is  a  rule  of  court  to  this  eiJeet.  But  In  the  greater  part  of  the  circuits 
effect  could  be  given  to  that  rule  no  such  rule  exists.  It  does  not  ap- 
only  by  requiring  a  party  to  waive  pear  to  have  been  adopted  in  Louisi- 
on  the  record  a  writ  of  erorr,  before  ana. ' ' 
his  motion  for  a  new  trial  is  heard. 


Sec.  2.]  yarber  v.  c.  a-  a.  ry.  co.  745 

tion,  to  grant  a  new  trial,  and  subject  the  defendant,  without 
his  consent,  to  greater  damages.  The  Appellate  Court  cannot 
grant  such  new  trial ;  for  that  would  be  to  reverse  the  judgment 
of  an  inferior  court,  on  a  motion  for  a  new  trial  here,  which 
was  not  made  to  that  court,  and  of  course,  on  a  matter  in  which 
that  court  committed  no  error.     *     *     * 


YARBER  V.  C.  &  A.  RY.  CO. 
235  Illinois,  589.     [1908.] 

Mr.  Justice  Dunn  delivered  the  opinion  of  the  court: 

This  was  an  action  on  the  case  brought  by  appellee,  against 
appellant,  to  recover  damages  for  personal  injuries.  Judgment 
against  appellant  has  been  affirmed  by  the  Appellate  Court,  and 
a  further  appeal  is  prosecuted  to  this  court. 

The  gist  of  the  various  counts  of  the  declaration  is,  that  appel- 
lant failed  to  furnish  appellee  a  safe  place  in  which  to  work, 
and  that  the  foreman,  who  was  a  vice-principal,  ordered  him 
into  a  dangerous  place.     *     *     * 

It  is  also  contended  that  no  error  concerning  the  admission 
of  evidence  or  the  giving  of  instructions  can  be  insisted  upon, 
because  no  exception  was  preserved  to  the  order  of  the  court 
overruling  the  appellant's  motion  for  a  new  trial.  Conceding 
that  no  exception  was  preserved  to  the  order  overruling  the 
motion  for  a  new  trial,  exceptions  were  preserved  to  the  giving 
and  refusal  of  instructions  and  the  admission  of  evidence,  and 
the  action  of  the  court  in  these  respects  is  therefore  open  to 
review.  In  order  to  bring  the  question  of  the  sufficiency  of  the 
evidence  to  sustain  the  verdict  before  this  court  for  review  it  is 
necessary  for  the  losing  party  to  make  a  motion  for  a  new  trial, 
and,  upon  its  being  overruled,  to  except  to  such  ruling,  and  to 
include  such  motion,  the  order  overruling  the  same,  and  his  ex- 
ception thereto,  together  with  the  evidence,  in  the  bill  of  excep- 
tions; but  the  propriety  of  giving  or  refusing  instructions  or 
the  admission  or  rejection  of  evidence  where  the  rulings  of  the 
court  thereon  have  been  excepted  to  and  incoi-porated  in  tlie 
bill  of  exceptions  has  always  been  subject  to  review,  regardless 


746  NEW    TRIALS.  [ChaP.    VI. 

of  the  fact  that  iio  motion  for  a  new  trial  was  made.^  (Illinois 
Central  Railroad  Co.  v.  O'Keefe,  154  111.  508.)  In  a  number 
of  the  later  decisions  of  this  court  it  has  been  held  that  it  is 
necessary,  before  an  Appellate  Court  can  consider  any  question 
of  the  admission  or  sufficiency  of  evidence  or  error  in  giving  or 
refusing  instructions,  that  a  motion  for  a  new  trial  should  have 
been  made  and  overruled  and  an  exception  preserved  to  the 
order  overruling  that  motion.  Among  the  cases  so  holding  are 
East  St.  Louis  Electric  Railroad  Co.  v.  Cauley,  148  111.  490; 
IllinoLs  Central  Railroad  Co.  v.  Johnson,  191  id.  594;  Chicago, 
Burlington  and  Quincy  Railroad  Co.  v.  Haselwood,  194  id.  69; 
Chicago  and  Eastern  Illinois  Railroad  Co.  v.  Schmitz,  211  id. 
446 ;  Call  V.  People,  201  id.  499. 

Such  ruling  is  a  departure  from  the  practice  of  the  common 
law,  to  which  the  motion  for  a  new  trial  was  originally  unknown. 
The  writ  of  error  issued  out  of  chancery  was  a  commission  to  the 
judges  named  in  it  to  examine  the  record  and  to  affirm  or  reverse 
the  judgment  according  to  law.  No  writ  of  error  lay  for  an 
error  in  law  not  appearing  upon  the  face  of  the  record,  and 
therefore,  where  a  party  alleged  anything  ore  tenus  which  was 
overruled  by  the  judge,  this  could  not  be  assigned  for  error. 
Tliere  was  no  bill  of  exceptions,  and  therefore  no  ruling  on  the 
admission  or  rejection  of  evidence,  error  in  the  charge  of  the 
court,  or  objection  of  any  kind  arising  on  the  trial,  could  be 
alleged  for  error  because  it  did  not  appear  on  the  record,  and 
so  the  party  aggrieved  had  no  remedy.  The  law  was  amended 
in  this  respect  by  the  statute  of  Westminster  2  (13  Edw.  I, 
Chap.  31),  which  provides  that  "when  one  impleaded  before  any 
of  the  justices  alleges  an  exception,  praying  they  will  allow  it, 
and  if  they  will  not  and  he  that  alleges  the  exception  w^rites 
the  same  and  requires  the  justices  will  put  to  their  seals,  the 
justices  shall  do  so,  and  if  one  will  not  another  shall;  and  if, 
upon  complaint  made  of  the  justices,  the  king  cause  the  record 
to  come  before  him,  and  the  exception  be  not  found  in  the  roll, 
with  the  seals  of  the  justices  thereto  put,  the  justice  shall  be 

iln  a  number  of  states  the  code  late    court.      For    a    review    of    the 

or   practice  act   is   construed   as  re-  legislation  on  this  point  in  Missouri, 

quiring  a  motion  for  a  new  trial  to  see   State  v.   Marshall,  36   Mo.   400. 

bring  exceptions  to  the  attention  of  See   also    Armstrong   v.    Whitehead, 

the  trial  court  a  second  time  before  81   Miss.   35,  reviewing   similar  leg- 

they  can  be  reviewed  by  an  appel-  islation  in  that  state. 


Sec.  2.]  yarber  v.  c.  &  a.  ry.  co.  747 

commanded  to  appear  at  a  certain  day  either  to  confess  or  deny 
his  seal,  and  if  he  cannot  deny  his  seal  they  shall  proceed  to 
judgment  according  to  the  exception,  as  it  ought  to  be  allowed 
or  disallowed. ' '  Bacon 's  Abridgement,  Bill  of  Exceptions ;  Ray- 
mond on  Bill  of  Exceptions,  31  Law  Library. 

The  bill  of  exceptions  was  upon  a  matter  of  law  arising  on 
the  trial  and  not  upon  any  question  of  fact,  and  judgment  was 
required  to  be  given  on  the  writ  of  error  according  to  the  ex- 
ception as  it  ought  to  be  allowed  or  disallowed.  But  no  question 
of  fact  could  be  drawn  into  examination  again  by  a  bill  of  ex- 
ceptions. The  common  law  processes  for  reviewing  judgments 
do  not  draw  into  question  any  fact  which  has  been  already  pro- 
nounced upon, — they  aim  only  to  correct  errors  of  law.  The 
motion  for  a  new  trial  was  not  only  unnecessary,  it  was  prac- 
tically unknown.  The  method  of  challenging  the  verdict  of  the 
jury  was  by  writ  of  attaint,  under  which  a  jury  of  twenty-four 
was  summoned  to  determine  whether  the  first  jury  had  sworn 
falsely  in  giving  their  verdict.  If  the  verdict  was  found  to  be 
false,  the  jurors  were  condemned  to  perpetual  infamy,  forfeiture 
of  goods,  imprisonment,  and  other  severe  punishments.  (3  Black- 
stone's  Com.  402.)  It  was  not  until  the  middle  of  the  seven- 
teenth century  that  the  practice  of  granting  new  trials  upon 
motion  began  to  prevail,  the  first  case  of  a  new  trial  granted 
upon  the  merits  being  Wood  v.  Gunston,  Style,  466.  (3  Black- 
stone's  Com.  388;  Plilliard  on  New  Trials,  4.)  The  object  of 
the  motion  for  a  new  trial  was  not  to  review  any  error  of  law 
committed  by  the  court,  but  was  to  review  the  question  of  fact 
as  found  by  the  jury.  The  granting  or  denial  of  the  motion 
was  entirely  discretionary  with  the  court.  No  exception  could 
be  taken  to  the  decision  thereon,  nor  could  it  be  assigned  for 
error.  In  the  courts  where  the  practice  in  this  respect  has  not 
been  modified  by  statutes  this  is  still  so.  In  the  Federal  courts 
the  appellate  tribunal  will  not  look  into  the  evidence  to  deter- 
mine whether  or  not  it  sustains  the  verdict.  Barr  v.  Gratz,  4 
Wheat.  213;  Blunt 's  Lessee  v.  Smith,  7  id.  248;  Henderson  v. 
Moore,  5  Cranch,  11;  Marine  Ins.  Co.  v.  Young,  id.  187;  Home 
Ins.  Co.  v.  Bartoro,  13  Wall.  603;  Terre  Haute  and  Indianapo- 
lis Railway  Co.  v.  Struble,  109  U.  S.  381;  Kearney  v.  Snod- 
grass,  12  Ore.  311 ;  Miller  v.  Baker,  20  Pick.  285 ;  Burd  v.  Duns- 
dale,  2  Bin.  90. 

The  law,  then,  in  the  absence  of  any  statute,  did  not  authorize 


r48 


NEW   TRIALS. 


Chap.  V[. 


the  taking  of  an  exception  to  the  overruling  of  a  motion  for  a 
new  trial,  and  the  practice  in  this  State  was  in  accordance  with 
this  rule  until  the  passage  of  the  act  of  June  21,  1837  (Laws  of 
1837,  p.  109),  Section  2  of  which  authorized  exception  to  be 
taken  to  the  overruling  of  motions  for  new  trials  and  the  assign- 
ment of  error  on  any  opinion  so  excepted  to.  Before  that  time 
this  court  uniformly  held  the  granting  or  refusing  a  new  trial  a 
question  to  be  determined  in  the  sound  discretion  of  the  court 
to  which  the  application  was  addressed  and  a  refusal  to  be  no 
ground  of  error.  (Clemson  v.  Kruper,  Beecher's  Breese,  210; 
Collins  V.  Claypole,  id.  212;  Street  v.  Blue,  id.  261;  Adams  v. 
Smith,  id.  283;  Vernon  v.  May,  id.  294;  Harmison  v.  Clark,  1 
Scam.  131;  Johnson  v.  Moulton,  id.  532.)  In  Smith  v.  Shultz, 
1  Scam.  490  (decided  after  the  passage  of  the  act  of  1837),  the 
court  said,  referring  to  an  assignment  of  error  on  the  overrul- 
ing of  a  motion  for  a  new  trial:  "At  common  law  the  decision 
of  a  court  upon  an  application  addressed  to  its  discretion  can- 
not be  assigned  for  error,  and  such  has  been  the  uniform  decision 
of  this  court.  But  by  an  act  of  the  Legislature  this  principle  of 
the  law  has  been  changed,  and  an  appeal  will  now  lie  from  the 
decision  of  a  court  refusing  an  application  for  a  new  trial." 
But  the  right  of  exception  in  this  case  being  entirely  statutory, 
the  order  of  a  court  granting  a  new  trial  is  still,  as  at  common 
law,  not  reviewable,  because  the  statute  allows  exceptions  only 
to  the  overruling  of  motions  for  new  trials.  Brookbank  v. 
Smith,  2  Scam.  78.     *     *     * 

It  thus  appears  that  the  rule  announced  in  the  later  cases 
above  cited,  and  others,  that  a  motion  for  a  new  trial  is  neces- 
sary to  preserve  for  review  rulings  upon  the  evidence  and  in- 
structions duly  excepted  to,  is  out  of  harmony  with  the  prin- 
ciples of  the  common  law  and  the  earlier  practice  of  our  courts. 
The  statute  has,  however,  modified,  to  some  extent,  the  common 
law  practice  in  regard  to  the  method  of  review  by  bill  of  ex- 
ceptions. What  is  now  Section  77  of  the  Practice  act  has  been 
in  force  in  its  material  parts,  substantially  as  at  present,  since 
1827.  It  directs  the  party  moving  for  a  new  trial  to  file  the 
points  in  writing,  particularly  specifying  the  grounds  of  his 
motion.  We  have  held  that  this  section  is  directory,  and  not 
mandatory.  The  party  moving  for  a  new  trial  may  be  required 
by  the  court  or  the  opposite  party  to  file  the  points  in  writing, 
specifying  the  grounds  of  his  motion.     If  this  is  not  required 


Sec.  2.]  yarber  v.  c.  &  a.  ry.  co.  749 

and  the  motion  is  submitted  without  any  statement  in  writing 
of  the  grounds  therefor  and  without  objection,  the  requirement 
of  such  statement  is  waived.  If  certain  points  in  writing  par- 
ticularly specifying  the  grounds  of  a  motion  for  a  new  trial 
have  been  filed,  the  party  will  be  deemed  to  have  waived  all 
causes  for  a  new  trial  not  set  forth  in  his  written  grounds  and 
in  the  Appellate  Court  will  be  confined  to  the  reasons  specified. 
On  the  other  hand,  if  the  motion  has  been  submitted  without 
specifying,  in  writing,  the  grounds  therefor,  the  party  may  avail 
himself  of  any  cause  for  a  new  trial  which  may  appear  in  the 
record,  whether  it  be  the  admission  or  rejection  of  evidence,  the 
giving  or  refusal  of  instructions,  the  lack  of  sufficient  evidence 
or  any  error  occurring  on  the  trial.  (Ottawa,  Oswego  and  Fox 
River  Valley  Railroad  Co.  v.  McMath,  91  111.  10-1 ;  Consolidated 
Coal  Co.  V.  Schaefer,  135  id.  210;  Hintz  v.  Graupner,  138  id. 
158 ;  Brewer  Brewing  Co.  v.  Boddie,  162  id.  346 ;  Bromley  v. 
People,  150  id.  297 ;  Chicago,  Paducah  and  Memphis  Railroad  v. 
Goff,  158  id.  453;  Landt  v.  McCullough,  206  id.  214;  Kehl  v. 
Abram,  210  id.  218.)  As  Avas  said  in  West  Chicago  Street  Rail- 
road Co.  v.  Krueger,  168  111.  586,  these  cases  are,  however,  to  be 
distinguished  from  those  cases  in  which  no  motion  for  a  new 
trial  was  made,  as  in  Illinois  Central  Railroad  Co.  v.  O'Keefe, 
154  111.  508,  and  cases  there  recited.  In  a  very  recent  case, 
while  it  was  stated  that  the  rule  is  firmly  established  that  when 
a  motion  for  a  new  trial  is  made  and  points  relied  on  stated 
therein  all  other  points  are  thereby  waived,  it  was  carefully 
stated  that  errors  in  giving  or  refusing  instructions,  when  ex- 
ceptions have  been  properly  taken,  are  saved  without  a  motion 
for  a  new  trial.  Chicago  City  Railway  Co.  v.  Smith,  226  111.  178. 
Under  the  practice  in  this  State,  decisions  of  the  court  made 
in  the  progress  of  a  trial  upon  instructions,  objections  to  evi- 
dence, or  other  matters  of  law  arising  in  the  cause  which  have 
been  incorporated  in  a  bill  of  exceptions,  may  be  assigned  for 
error  and  reviewed  by  an  Appellate  Court  without  any  motion 
for  a  new  trial.  They  are  not  waived  by  making  a  motion  for  a 
new  trial  if  such  motion  is  submitted  without  any  points  stated 
in  writing.  But  if  a  motion  is  made  for  a  new  trial  and  the 
grounds  thereof  are  stated  in  writing,  the  party  is  limited  to 
those  reasons  and  all  other  errors  are  deemed  to  have  been 
waived.  In  this  case  a  motion  for  a  new  trial  was  made,  speci- 
fying the  grounds  thereof,  among  others  the  admission  of  im- 


750 


NEW   TRIALS. 


[Chap.  VI. 


proper  evidence  and  the  giving  of  improper  instructions.  The 
exceptions  taken  to  the  decision  of  the  court  in  these  particu- 
lars were  therefore  not  waived  and  are  available  to  the  appel- 
lant, whether  exception  was  taken  to  the  order  overruling  the 
motion  for  a  new  trial  or  not. 

For  the  errors  indicated  the  judgments  of  the  Appellate  Court 
and  the  Circuit  Court  will  be  reversed  and  the  cause  remanded 
to  the  Circuit  Court  for  a  new  trial. 

Reversed  and  remanded. 


CHAPTER  VII. 
BILLS  OF  EXCEPTIONS. 

Statute  of  Westminster,  2.     [13  E.  I.  c.  31.]  ^ 

When  one  that  is  impleaded  before  any  of  the  justices  doth 
allege  an  exception,  praying  that  the  justices  will  allow  it,  which 
if  they  will  not  allow,  if  he  that  alleged  the  exception  do  write 
the  same  exception,  and  require  that  the  justices  will  put  to 
their  seals  for  a  witness,  the  justices  shall  so  do ;  and  if  one  will 
not,  another  of  the  company  shall.  And  if  the  king,  upon  com- 
plaint made  of  the  justices,  cause  the  record  to  come  before  him, 
and  the  same  exception  be  not  found  in  the  roll,  and  the  plain- 
tiff show  the  exception  written,  with  the  seal  of  a  justice  put  to, 
the  justice  shall  be  commanded  that  he  appear  at  a  certain  day, 
either  to  confess  or  deny  his  seal.  And  if  the  justice  cannot 
deny  his  seal,  they  shall  proceed  to  judgment  according  to  the 
same  exception,  as  it  ought  to  be  allowed  or  disallowed. 


MONEY  V.  LEACH. 

3  Burrow,  1692.      [1765.] 

Soon  after  the  court  sat,  tlie  Lord  Chief  Justice  Pratt  came 
personally  into  court,  to  confess  (ore  icnns)  his  seal  put  to  a 
bill  of  exceptions  in  this  case ;  pursuant  to  the  requisition  of  the 
following  writ,  viz. : 

1  2    Institutes,   p.   426 :     "  At   the  the    writ    of    error    saith,    quia    in 

common  law,  before  the  making  of  recordo   et   processu,   etc.,   error   in- 

this  act,  a  man  might  have  had  a  tervenit  manifestus,  etc.,  or  for  er- 

writ   of  error   for   an   error  in  law,  ror  in  fait,  by  alleging  matter  out 

either  in  redditione  judicii,  in  reddi-  of    the    record,    as   death    of    either 

tione    executionis,    or    in    processu,  party,    etc.,   before   judgment;    now 

etc.,  and  this  error  in  law  must  be  the    mischiefs    before    this    statute 

apparent    in    the    record,    etc.      For  was,    that    when    the    demandant   or 

751 


752 


BILLS   OF   EXCEPTIONS. 


[Chap.  VII. 


"George  the  third,  &c. — To  our  trusty  and  well-beloved 
Charles  Pratt,  knight,  our  chief  justice  of  the  bench,  greeting. 
— Whereas  we  have  lately  been  informed  that  in  the  record  and 
process  and  also  in  giving  of  judgment  in  a  plaint  which  was 
in  our  court  before  you  and  your  associates,  our  justices  of  the 
said  bench,  by  our  writ,  between  Dryden  Leach,  and  John 
Money,  James  Watson,  and  Robert  Blackmore,  in  a  plea  of  tres- 
pass, assault,  and  imprisonment,  manifest  error  hath  intervened, 
to  the  great  damage  of  the  said  John,  James,  and  Robert ;  which 
said  record  and  process,  for  the  error  aforesaid,  we  have  caused 
to  be  brought  into  our  court  before  us ;  and  now,  on  the  behalf 
of  the  said  John,  James,  and  Robert  we  are  informed,  in  our 
said  court  before  us,  that  at  the  trial  of  the  issue  first  joined 
between  the  said  parties  in  the  plea  aforesaid,  the  council  learned 
in  the  law  of  the  said  John,  James,  and  Robert  alleged  on  their 
l)ehalf  certain  exceptions  to  the  opinion  then  declared  and  given 
by  you ;  and  that  the  said  exceptions  were  then  and  there  writ- 
ten in  a  certain  bill,  to  which  3^ou  put  your  seal,  at  the  request 
of  the  said  John,  James,  and  Robert,  according  to  the  form  of 
the  statute  in  such  case  made  and  provided ;  and  the  said  John, 
James,  and  Robert  have  brought  into  our  court  before  us  the 
said  bill  with  your  seal  put  to  the  same  as  it  is  said ;  whereupon 
the  said  John,  James,  and  Robert  have  besought  us  to  do  what 
further  should  seem  meet  to  be  done  in  this  behalf,  according  to 
the  form  of  the  said  statute ;  and  forasmuch  as  by  the  said  statute 
it  is  ordained  that  in  such  case  the  justice  whose  seal  shall  be 
put  to  such  exception  be  commanded  to  appear  before  us  at  a 
certain  day,  to  confess  or  deny  his  seal :  therefore  we  command 
you  that  you  personally  appear  before  us,  on  the  morrow  of  the 
ascension  of  our  Lord,  wheresoever  we  shall  then  be  in  England, 
to  confess  or  deny  the  seal  so  put  to  the  said  bill  of  exceptions 
as  aforesaid  to  be  your  seal,  according  to  the  form  and  effect 
of  the  said  statute ;  and  that  you  bring  with  you,  at  the  same 


plaintiff,  or  the  tenant  or  defendant 
did  offer  to  allege  any  exception  (as 
in  those  days  they  did  ore  tenus 
at  the  bar),  praying  the  justices  to 
allow  it,  and  the  justices  overruling 
it  so  as  it  was  never  entered  of  rec- 
ord, this  the  party  could  not  assign 


for  error,  because  it  neither  ap- 
peared within  the  record,  nor  was 
any  error  in  fait,  but  in  law,  and  so 
the  party  grieved  was  without  rem- 
edy, for  whose  relief  this  statute 
was  made. ' ' 


MONEY    V.   LEACH.  753 

time,  this  writ.  Witness  William  Lord  Mansfield,  at  Westmin- 
ster, the  24th  of  April  in  the  fifth  year  of  our  reign.  "^ 

N.  B.  The  bill  of  exceptions,  sealed  by  Lord  Chief  Justice 
Pratt,  had  been  previously  brought  into  this  court,  and  was 
now  in  the  hands  of  Mr.  Owen,  as  secondary  of  the  office  of 
pleas :  and  all  the  proceedings,  down  to  and  including  the  above- 
mentioned  writ,  were  entered  upon  the  rolls  of  this  court. 

The  Lord  Chief  Justice  Pratt  being  now  come  into  this  court, 
pursuant  to  the  command  contained  in  the  said  writ,  delivered 
it  to  the  Lord  Chief  Justice  of  this  court;  Mr.  Owen,  at  the 
same  time,  delivering  the  original  bill  of  exceptions  into  Lord 
Mansfield 's  hand.  Whereupon  Lord  Mansfield,  showing  to  Lord 
Chief  Justice  Pratt  the  seal  thereto  affixed,  asked  him  "whether 
that  was  his  lordship's  seal,  or  not."  To  which  question,  his 
lordship  answering  in  the  affirmative.  Lord  Mansfield  redeliv- 
ered the  bill  of  exceptions  to  Mr.  Owen ;  at  the  same  time  deliv- 
ering to  him  the  above-mentioned  writ,  with  orders  "that  it 
should  be  filed." 

Note — There  was  no  written  return  to  this  writ:  but  Mr. 
Owen  proposes  to  indorse  it — "Sir  Charles  Pratt,  knight,  the 
chief  justice  within  named,  personally  appeared  in  the  court 
of  the  lord  the  king  before  the  king  himself,  &c.,  on  the  day  of 
the  return  within  written ;  and  confesseth  that  the  seal  put  to 

1  In  case  a  judge  refused  to  seal  vuis,    quod   si   ita   est,   tunc   sigilla 

a  bill  of  exceptions,  the  statute  fur-  vestra  apponatis.     Si  ita,   'tis  condi- 

nished      a     cumbersome      remedy —  tional,  if  the  bill  be  true  and  duly 

Bridgman   v.   Holt,   Shower's   Cases  tendered,  then  this  writ;   and  if  it 

in  Parliament,  143:     "By  the  Stat-  be  returned,  quod  non  ita  est,  then 

ute    of    Westminster    2,    c.    31.      In  an   action    for   a    false   return,    and 

case  the  judge  refuses,  then  a  writ  thereupon  the  surmise  will  be  tried, 

to  command  him,  which  is  to  issue  And    if    found    to    be    so,    damages, 

out     of     chancery,     quod     apponat  And   upon   such   a   recovery,   a   per- 

sigillum  suum;  and  then   a  writ  to  emptory  writ  commanding  the  same, 

own  or  deny  his  seal.  That  the  law  is  thus  seems  plain; 

"By     2     Inst.     426,     the     party  though  no   precedent  can  be  shown 

grieved  by  the   denial  may  have  a  of   such   a  writ,    'tis   only   for  this 

writ  upon  the  statute,  commanding  reason,   because   no   judge   did   ever 

the  same  to  be  done  juxta  formam  refuse  to  seal  a  bill  of  exceptions; 

statuti,     Eeg.     182     Fitz.     Natura  and  none  was  ever  refused,  because 

Brevium   21    and   11    H.    4,    52,   65.  none  was  ever  tendered  like  to  this, 

There's   the   form    of   the   writ   set  so    artificial    and    groundless.      But 

out  at  large.     It  recites  a  surmise  that  such  actions  lie  upon  this  stat- 

of    an    exception    taken    and    over-  ute,  were  cited  Eegst.  174,  Nat.  Br. 

ruled,  and  it  follows  vobis  proecipi-  10." 
H.  T.  p.— 48 


754  BILLS   OF   EXCEPTIONS.  [ChAP.    VII. 

the  bill  of  exceptions  within  mentioned  is  his  seal." 

The  lord  chief  justice  of  the  Common  Pleas  immediately  re- 
tired, without  sitting  down:  and  the  lord  chief  justice  of  this 
court  attended  him  till  he  was  got  past  the  puisne  judge,  but  not 
quite  to  the  door  of  the  court. 


WRIGHT  V.  SHARP. 

1  Salkeld,  288.     [1709.] 

A  Corporation-book  was  offered  in  evidence  at  the  assizes  to 
prove  a  member  of  the  corporation  not  in  possession,  and  re- 
fused. No  bill  of  exceptions  was  then  tendered,  nor  were  the 
exceptions  reduced  to  writing;  so  the  trial  proceeded,  and  a 
verdict  was  given  for  the  plaintiff.  Next  term  the  court  was 
moved  for  a  bill  of  exceptions,  and  it  was  stirred  and  debated 
in  court.  It  was  urged  that  the  law  requires  quod  proponat 
exceptionem  suam.,  and  no  time  is  appointed  for  the  reducing  it 
into  writing,  and  the  party  is  not  grieved  till  a  verdict  be  given 
against  him;  and  the  same  memory  that  serves  the  judges  for 
a  new  trial  will  serve  for  bills  of  exceptions.  Vide  2  Inst.  437. 
N.  B.  21.  540  b.  Vet.  Intr.  96,  136.  Raymond  405.  Brownl. 
Red.  433.  2  Lev.  236.  Stat.  West.  2.  c.  31.  On  the  other  side 
it  was  said  that  this  practice  would  prove  a  great  difficulty  to 
judges,  and  delay  of  justice;  that  the  precedents  and  entries 
suppose  the  exception  to  be  written  down  upon  its  being  dis- 
allowed, and  the  statute  ought  to  be  construed  so  as  to  prevent 
inconvenience;  besides,  the  words  of  the  act  are  in  the  present 
tense,  and  so  is  the  writ  formed  on  the  act.  Holt,  C.  J.  If 
this  practice  should  prevail,  the  judge  would  be  in  a  strange 
condition: 'He  forgets  the  exception,  and  refuses  to  sign  the  bill, 
so  an  action  must  be  brought :  You  should  have  insisted  on  your 
exception  at  the  trial :  You  waive  it  if  you  acquiesce,  and  shall 
not  resort  back  to  your  exception  after  a  verdict  against  you, 
when  perhaps,  if  you  had  stood  upon  your  exception,  the  party 
had  other  evidence,  and  need  not  have  put  the  cause  on  this 
point :  The  statute  indeed  appoints  no  time,  but  the  nature  and 
reason  of  the  thing  requires  the  exception  should  be  reduced 
to  writing  when  taken  and  disallowed,  like  a  special  verdict,  or 


EX   PARTE    MARTHA   BRADSTREET.  755 

a  demurrer  to  evidence;  not  that  they  need  be  drawn  up  in 
form;  but  the  substance  must  be  reduced  to  writing  while  the 
thing  is  transacting,  because  it  is  to  become  a  record:  So  the 
motion  was  denied. 


EX  PARTE  MARTHA  BRADSTREET. 

4  Peters  (U.  S.  Sup.),  102.     [1830.] 

At  January  term  1829,  on  motion  of  Mr.  Key,  and  on  affidavit 
filed,  the  court  granted  a  rule  on  the  honorable  Alfred  Conklin, 
district  judge  of  the  northern  district  of  New  York,  to  show 
cause  why  he  did  not  sign  a  certain  bill  of  exceptions  tendered 
to  him  on  the  part  of  the  plaintiff,  in  the  ease  of  James  Jackson 
ex.  dem.  of  Martha  Bradstreet  vs.  Daniel  Thomas;  which  cause 
had  been  tried  before  him,  and  a  verdict  given  for  the  defend- 
ant. The  rule  was  made  returnable  on  the  second  Monday  in 
January  of  this  term.  The  same  rule  was  obtained  in  the  ease 
of  Jackson  ex.  dem.  of  Martha  Bradstreet  vs.  Joseph  Kirkland. 

To  this  rule  the  district  judge,  on  the  10th  of  December,  1829, 
returned  with  the  bills  of  exceptions  which  had  accompanied 
the  copy  of  the  rule  as  served  upon  him,  his  reasons  for  refus- 
ing to  comply  with  the  demand  of  the  plaintiff.     *     *     * 

The  return  set  forth,  that  at  the  time  of  the  trial  of  the  cause 
mentioned  in  the  rule,  no  bill  of  exceptions  was  tendered,  nor 
were  any  exceptions  reduced  to  writing,  except  by  himself  in 
the  minutes  which  he  kept  of  the  trial ;  unless,  which  was  prob- 
able, the  counsel  also  noted  them  in  their  minutes.  Several 
weeks  after  the  trial,  the  amended  bill  of  exceptions,  accompa- 
nied by  a  paper  containing  numerous  amendments  proposed  by 
the  counsel  for  the  defendant,  was  delivered  to  him  for  correc- 
tion ;  and  he  thereupon  proeeeded,  with  due  deliberation,  and 
with  the  aid  of  his  notes  of  the  trial,  to  correct  and  settle  the 
same,  in  conformity,  as  nearly  as  possible,  with  the  truth  of  the 
case.  No  counsel  appeared  for  either  party,  and  no  application 
was  made  for  some  time  for  the  bill  of  exceptions  by  the  coun- 
sel in  the  cause.  In  an  amended  return,  the  district  judge 
stated  that  some  correspondence  had  taken  place  with  Mrs.  Brad- 
street, in  relation  to  alterations  proposed  to  be  made  in  the  bill 


756  BILLS   OF   EXCEPTIONS.  [ChAP.    VII. 

of  exceptions;  and  in  an  interview  with  her,  nothing  was  said 
by  her  which  was  understood  as  an  intimation  of  her  intention 
or  wish  to  be  heard  further  upon  the  subject. 

The  return  then  proceeds  to  state,  that  in  the  bill  of  excep- 
tions, as  proposed  by  Mrs.  Bradstreet,  many  alterations  had 
been  made  in  terms  and  language,  of  little  importance,  and  mat- 
ters are  introduced  as  having  occurred  on  the  trial,  which  did 
not  occur,  circumstances  are  misstated,  and  opinions  are  im- 
puted to  him  which  he  did  not  express;  and  thus  many  parts 
of  the  amendments  proposed  by  the  plaintiff  were  untrue ;  and 
that  therefore  the  same  were  not  signed  by  him.  The  particu- 
lars to  which  these  representations  refer  are  stated  in  the  return. 
The  return,  after  stating  that  in  reference  to  an  instrument  of 
writing  produced  in  the  cause,  in  the  bill  of  exceptions  as  signed 
by  the  judge,  a  brief  description  of  the  instrument  was  inserted, 
instead  of  the  whole,  in  extenso,  which  had  been  done  in  con- 
formity with  the  established  rules  of  practice,  requiring  only 
so  much  of  the  evidence  offered  upon  the  trial  as  is  sufficient 
fully  and  fairly  to  present  every  question  of  law  embraced  in 
the  exception,  proceeds — 

"In  conclusion,  I  have  only  to  add  the  expression  of  my  con- 
viction, that  although  this  rule  of  law  has  by  no  means  been 
rigidly  applied  in  abridging  this  bill,  it  has  in  no  instance  been 
departed  from  to  the  prejudice  of  the  plaintiff." 

"If,  however,  on  a  particular  examination  of  the  bill  and 
amendments  (without  which,  I  may  be  permitted  to  remark,  it 
is  impossible  to  form  a  just  conclusion),  your  honorable  court 
should,  in  regard  to  the  documentary  evidence,  entertain  a  dif- 
ferent opinion,  I  shall  most  cheerfully  obey  its  mandate  to  cor- 
rect the  supposed  error." 

Mr.  Storrs,  on  a  motion  to  discharge  the  rule,  stated  that  this 
court  would  never  require  a  judge  to  sign  a  bill  of  exceptions 
which  he  considers  incorrect.  The  court  will  adopt  another 
course,  and  will  leave  it  to  the  judge  to  re-examine  the  bill,  and 
to  do  what  he  shall  consider  proper.     *     *     * 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the 
court. 

The  court  is  unanimously  of  opinion  that  the  rule  ought  not 
to  be  granted. 

This  is  not  a  case  in  which  the  judge  has  refused  to  sign  a 
l)ill  of  exceptions.    The  judge  has  signed  such  a  bill  as  he  thinks 


EX   TARTE    MARTHA    BRADSTREET.  757 

correct.  If  the  court  had  granted  a  rule  upon  the  district  judge 
to  sign  a  bill  of  exceptions,  the  judge  could  have  returned  that 
he  had  performed  that  duty.  But  the  object  of  the  rule  is,  to 
oblige  the  judge  to  sign  a  particular  bill  of  exceptions,  which 
had  been  offered  to  him.  The  court  granted  the  rule  to  show 
cause;  and  the  judge  has  shown  cause,  by  saying  he  has  done 
all  that  can  be  required  from  him;  and  that  the  bill  offered  to 
him  is  not  such  a  bill  as  he  can  sign. 

Nothing  can  be  more  manifest,  than  that  the  court  cannot 
order  him  to  sign  such  a  bill  of  exceptions.  The  person  who 
offers  a  bill  of  exceptions  ought  to  present  such  a  one  as  the 
judge  can  sign.  The  course  to  be  pursued  is,  either  to  endeavor 
to  draw  up  a  bill,  by  agreement,  which  the  judge  can  sign;  or 
to  prepare  a  bill  to  which  there  will  be  no  objection,  and  present 
it  to  the  judge. 

The  court  will  observe,  that  there  is  something  in  this  proceed- 
ing which  they  cannot,  and  which  they  ought  not  to  sanction.  A 
bill  of  exceptions  is  handed  to  the  judge  several  weeks  after  the 
trial  of  the  cause,  and  he  is  asked  to  correct  it  from  memory. 
The  law  requires  that  a  bill  of  exceptions  should  be  tendered  at 
the  trial.  But  the  usual  practice  is  to  request  the  judge  to  note 
down  in  writing  the  exceptions,  and  afterwards,  during  the  ses- 
sion of  the  court,  to  hand  him  the  bill  of  exceptions,  and  submit 
it  to  his  correction  from  his  notes.  If  he  is  to  resort  to  his  mem- 
ory, it  should  be  handed  to  him  immediately,  or  in  a  reasonable 
time  after  the  trial.  It  would  be  dangerous  to  allow  a  bill  of  ex- 
ceptions of  matters  dependent  on  memory,  at  a  distant  period, 
when  he  may  not  accurately  recollect  them.  And  the  judge  ought 
not  to  allow  it. 

If  the  party  intends  to  take  a  bill  of  exceptions,  he  should  give 
notice  to  the  judge  at  the  trial ;  and  if  he  does  not  file  it  at  the 
trial,  he  should  move  the  judge  to  assign  a  reasonable  time  within 
which  he  may  file  it.  A  practice  to  sign  it  after  the  term  must 
be  understood  to  be  a  matter  of  consent  between  the  parties,  un- 
less the  judge  has  made  an  express  order  in  the  term,  allowing 
such  a  period  to  prepare  it. 

It  is  ordered  by  the  court  that  the  mandamus  as  prayed  for  be, 
and  the  same  is  hereby  refused;  and  that  the  rule  heretofore 
granted  in  this  cause  be.  and  the  same  is  hereby  discharged. 


758  BILLS   OF   EXCEPTIONS.  [ChAP.    YII. 

MtJLLER  V.  EHLERS. 

91  U.  8.  249.     [1875.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

It  perhaps  sufficiently  appears  from  the  bill  of  exceptions  iji 
this  case,  if  it  is  to  be  taken  as  a  part  of  the  record,  that  the 
rulings  complained  of  were  excepted  to  in  proper  form  at  the 
time  of  the  trial;  but  it  does  not  appear  that  the  bill  of  excep- 
tions was  tiled,  signed,  tendered  for  signature,  or  even  prepared, 
before  the  adjournment  of  the  court  for  the  term  at  which  the 
judgment  was  rendered.  No  notice  was  given  to  the  plaintiflf  of 
any  intention  on  the  part  of  the  defendants  to  ask  for  the  allow- 
ance of  a  bill  of  exceptions,  either  during  the  term  or  after.  No 
application  was  made  to  the  court  for  an  extension  of  time  for 
that  purpose.  No  such  extension  of  time  was  granted,  and  no 
consent  given. 

Upon  the  adjournment  for  the  term  the  parties  were  out  of 
court,  and  the  litigation  there  was  at  an  end.  The  plaintiff 
Avas  discharged  from  further  attendance ;  and  all  proceedings 
thereafter,  in  his  absence  and  without  his  consent,  were  coram 
nan  judice.  The  order  of  the  court,  therefore,  made  at  the  next 
term,  directing  that  the  bill  of  exceptions  be  filed  in  the  cause 
as  of  the  date  of  the  trial,  was  a  nullity.  For  this  reason,  upon 
the  case  as  it  is  presented  to  us,  the  bill  of  exceptions,  though 
returned  here,  cannot  be  considered  as  part  of  the  record. 

This  case  differs  very  materially  from  that  of-  United  States 
v.  Breitling,  20  How.  253.  There  the  bill  of  exceptions  was  pre- 
pared during  the  term,  and  presented  to  the  court  for  allow- 
ance four  days  before  the  adjournment.  It  was  handed  back  to 
the  attorney  presenting  it,  three  days  before  the  adjournment, 
with  the  request  that  he  submit  it  to  the  opposing  counsel.  De- 
lay occurred,  and  the  signature  was  not  actually  affixed  until 
after  the  term.  Under  the  special  circumstances  of  that  case, 
the  signature,  after  the  term,  was  recognized  as  proper.  The 
particular  grounds  for  this  ruling  are  not  stated;  but  it  was 
probably  for  the  reason  that,  upon  the  facts  stated,  the  consent 
to  further  time  beyond  the  term  for  the  settling  of  the  excep- 
tions might  fairly  be  presumed.  That  case  went  to  the  extreme 
verge  of  the  law  upon  this  question  of  practice,  and  we  are  not 
inclined  to  extend  its  operation.     It  was  said  by  this  court  in 


I 


MiJLLER   V,    EHLERS.  751) 

Generes  v.  Bonnemer,  7  Wall.  565,  that  '"to  permit  the  judge  to 
make  a  statement  of  the  facts  ou  which  the  case  shall  be  heard 
here,  after  the  case  is  removed  to  this  court  by  the  service  of 
the  writ  of  error,  or  even  after  it  is  issued,  would  place  the 
rights  of  parties  who  have  judgments  of  record  entirely  in  the 
power  of  the  judge,  without  hearing  and  without  remedy." 
This  language  is  substantially  adopted  in  Flanders  v.  Tweed,  9 
Wall.  425,  where  it  was  said  "the  statement  of  facts  by  the 
judge  is  filed  upon  the  29th  May,  1868,  nearly  three  months 
after  the  rendition  of  the  judgment.  This  is  an  irregularity, 
for  which  this  court  is  bound  to  disregard  it,  and  to  treat  it  as 
no  part  of  the  record. ' ' 

As  early  as  Walton  v.  United  States,  9  Wheat.  651,  the  power 
to  reduce  exceptions  taken  at  the  trial  to  form,  and  to  have  them 
signed  and  filed,  was,  under  ordinary  circumstances,  confined  to 
a  time  not  later  than  the  term  at  which  the  judgment  was  ren- 
dered. This,  we  think,  is  the  true  rule,  and  one  to  which  there 
should  be  no  exceptions  without  an  express  order  of  the  court 
during  the  term  or  consent  of  the  parties,  save  under  very  ex- 
traordinary circumstances.  Here  we  find  no  order  of  the  court, 
no  consent  of  the  parties,  and  no  such  circumstances  as  will 
justify  a  departure  from  the  rule.  A  judge  cannot  act  judi- 
cially upon  the  rights  of  parties,  after  the  parties  in  due  course 
of  proceeding  have  both  in  law  and  in  fact  been  dismissed  from 
the  court. 


The  judgment  is  affirmed. 


1  Mr.     Justice     Blatchford,     in  the  '  practice,   pleadings   and   forms 

Chateaiigay     Iron     Co.,     Petitioner,  and  modes  of  proceeding  existing  at 

]28  U.  S.  544:     "We  are  of  opinion  the  time  in  like  causes  in  the  courts 

that  the  practice  and  rules  of  the  of  record  of  the  State'  within  which 

state  court  do  not  apply  to  proceed-  the  circuit  court  is  held,  'any  rule 

ings  in  the  circuit  court  taken  for  of    court    to    the    contrary    notwith- 

the    purpose    of    reviewing    in    this  standing. '     *     *     *     The       manner 

court    a    judgment    of    the    circuit  or  the  time  of  taking  proceedings  as 

court,  and  that  such  rules  and  prac-  a   foundation   for  the  removal  of   a 

tiee,     embracing     the     preparation,  ease   by   a   writ   of   error   from   one 

perfecting,   settling   and   signing   of  Federal  court  to  another  is  a  mat- 

a  bill  of  exceptions  are  not  within  ter   to   be   regulated   exclusively  by 

the   '  practice,   pleadings   and   forms  acts  of  Congress,  or,  when  they  are 

and    modes    of    proceeding'    in    the  silent,  by  methods  derived  from  the 

circuit  court  which  are  required  by  common   law,   from   ancient  English 

sec.  914  of  the  Eevised  Statutes,  to  statutes,  or  from  the  rules  and  prac- 

conform    'as    near    as    may    be'    to  tice    of    the    courts    of    the    United 


760  BILLS   OF   EXCEPTIONS.  [ChAP.    YII. 

MALONY  V.  ADSIT.  ^ 

175  V.  S.  281.     [1899.] 

Action  iu  the  U.  S.  District  <  "ourt  of  Alaska  to  recover  cer- 
tain lands,  tried  before  Hon.  A.  K.  Delany,  District  Judge,  under 
written  stipulation  waiving  a  jury.  The  court  made  certain 
special  findings,  upon  which  judgment  was  entered  for  plaintiff. 
On  August  11,  1897,  a  motion  for  a  new  trial  was  made  and 
overruled.  Judgment  for  the  plaintiff  was  duly  entered,  and  on 
September  20,  1897,  the  plaintiff'  was  put  in  possession  of  the 
premises  in  dispute,  in  pursuance  of  a  writ  of  possession  allowed 
by  Charles  S.  Johnson,  Judge  of  the  United  States  District  Court, 
who  had  succeeded  Arthur  K.  Delany  to  that  ofdce.     *     *     * 

On  January  4,  1898,  a  bill  of  exceptions  was  filed,  to  which 
was  appended  a  statement,  signed  by  the  respective  counsel, 
that  the  bill  of  exceptions  was  correct  and  in  accordance  with 
the  proceedings  had  in  the  trial  of  the  cause;  and  the  record 
discloses  that,  on  said  4th  of  January,  1898,  the  bill  of  excep- 
tions was  settled  and  allowed  by  Judge  Johnson. 

Mr.  Justice  Shiras,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

An  inspection  of  this  record  discloses  that  the  bill  of  excep- 
tions was  not  settled,  allowed  and  signed  by  the  judge  who  tried 
the  case,  but  by  his  successor  in  office,  several  months  after  the 
trial.  It  is  settled  that  allowing  and  signing  a  bill  of  exceptions 
is  a  judicial  act,  which  can  only  be  performed  by  the  judge 
who  sat  at  the  trial.  What  took  place  at  the  trial,  and  is  a 
proper  subject  of  exception,  can  only  be  judicially  known  by 
the  judge  who  has  acted  in  that  capacity.  Such  knowledge  can- 
not be  brought  to  a  judge  who  did  not  participate  in  the  trial 
or  to  a  judge  who  has  succeeded  to  a  judge  who  did,  by  what 
purports  to  be  a  bill  of  exceptions,  but  which  has  not  been  signed 
and  allowed  by  the  trial  judge. 

Section  953  of  the  Revised  Statutes  is  as  follows:  "A  bill 
of  exceptions  allowed  in  any  cause  shall  be  deemed  sufficiently 
authenticated  if  signed  by  the  judge  of  the  court  in  which  the 

States.     The  only   regulation   made  vides  that  they  shall  be  sufficiently 

by   Congress    as   to    bills    of    excep-  authenticated    by    the    signature    of 

tions  is   that  contained  in   sec.   953  the    presiding    judge,    without    any 

of  the  Eevised  Statutes,  which  pro-  seal." 


MALONY    V.    ADSIT.  761 

cause  was  tried,  or  by  the  presiding  judge  thereof,  if  more  thau 
one  judge  sat  at  tlie  trial  of  the  cause,  without  any  seal  of  court 
or  judge  being  annexed  thereto." 

We  understand  this  enactment  to  mean  that  no  bill  of  ex- 
ceptions can  be  deemed  sufficiently  authenticated  unless  signed 
by  the  judge  who  sat  at  the  trial,  or  by  the  presiding  judge  if 
more  than  one  sat. 

In  Mussina  v.  Cavazos,  6  Wall.  355,  363,  after  the  case  had 
been  elaborately  argued  on  the  merits,  it  was  discovered  by  the 
court  that  the  bill  of  exceptions  had  not  been  either  signed  or 
sealed  by  the  judge  below.  Thereupon  the  court  delivered  the 
following  opinion:  "Whatever  might  be  our  opinion  of  the 
exceptions  which  appear  in  the  record,  if  they  were  presented 
in  such  a  way  that  we  could  consider  them,  we  find  them  beyond 
our  reach.  The  bill  of  exceptions,  or  what  purports  to  be  a  bill 
of  exceptions,  covering  more  than  three  hundred  and  fifty  pages 
of  the  printed  record,  is  neither  signed  nor  sealed  by  the  judge 
who  tried  the  cause;  and  there  is  nothing  which  shows  that  it 
was  submitted  to  him  or  in  any  way  received  his  sanction.  We 
are  therefore  constrained  to  affirm  the  judgment." 

Boroscale  v.  Bosworth,  a  case  reported  in  98  Mass.  34,  pre- 
sented a  somewhat  similar  question.  There  a  judge  of  the  trial 
court  took  a  bill  of  exceptions  that  had  been  substantially  agreed 
on  by  the  parties  and  duly  filed,  to  examine  whether  the  state- 
ment of  his  rulings  was  correct,  with  the  understanding  that  if 
correct  he  should  allow  the  bill.  However,  the  judge  retained 
the  bill  without  allowing  it  for  more  than  a  year,  and  resigned 
his  office  without  having  done  so.  Afterwards,  in  such  circum- 
stances, a  motion  was  made  for  a  new  trial  in  the  trial  court, 
and  allowed.  To  the  ruling  which  allowed  a  new  trial  the  plain- 
tiffs took  an  exception  and  carried  the  case  to  the  Supreme  Judi- 
cial Court.  That  court  refused  to  disturb  the  order  of  the  court 
below  awarding  a  new  trial,  and  hold  that  where  it  appears  to 
the  court  that  a  party  has  been  deprived,  without  his  fault,  of 
a  right  or  remedy  which  the  law  gives  him,  it  would  generally 
be  held  a  legal  reason  for  granting  a  new  trial.  The  court  cited 
the  English  cases  of  Nind  v.  Arthur,  7  Dowd.  &  Lowndes,  252, 
where  upon  the  death  of  Mr.  Justice  Coltman,  before  allowing 
a  bill  of  exceptions  which  had  been  presented  to  him,  a  new 
trial  was  granted ;  also  Bennett  v.  P.  &  0.  Steamship  Company, 
16  C.  B.  29,  where  the  settling  of  a  bill  of  exceptions  having 


762  BILLS   OP   EXCEPTIONS.  [ChAP.    VII. 

been  delayed  by  the  appointmeut  of  Chief  Justice  Wilde  as 
Lord  Chancellor,  and  afterwards  by  reason  of  his  infirm  health 
all  hope  of  it  having  been  lost,  a  new  trial  was  granted  by  the 
trial  court.  Also  the  case  of  Newton  v.  Boodle,  3  C  B.  796, 
where  the  death  of  Chief  Justice  Tindal  prevented  the  sealing 
of  a  bill  of  exceptions,  without  laches  of  the  (excepting  party, 
was  regarded  as  good  ground  for  a  motion  for  a  new  trial. 

The  rationale  of  these  eases  evidently  was  that  the  court  of 
errors  could  not  consider  a  bill  of  exceptions  that  had  not  been 
signed  by  the  judge  who  tried  the  case,  and  that  such  failure 
or  omission  could  not  be  supplied  by  agreement  of  the  parties, 
but  that  the  only  remedy  was  to  be  found  in  a  motion  for  a  new 
trial. 

Those  cases  were  cited  with  approval  by  this  court  in  Hume  v. 
Bowie,  148  U.  S.  245,  where  it  was  held  that  where  the  judge 
presiding  at  the  trial  of  a  cause  in  the  Supreme  Court  of  the 
District  of  Columbia  at  circuit  dies  without  having  settled  a  bill 
of  exceptions,  it  is  in  order  for  a  motion  to  be  made  to  set  aside 
the  verdict  and  order  a  new  trial,  and  that,  where  such  an  order 
is  made  by  the  court  in  general  term,  it  is  not  a  final  judgment 
from  which  an  appeal  may  be  taken  to  this  court.  It  is  true 
that  there  is  a  rule  of  the  Supreme  Court  of  the  District  of 
Columbia  which  provides  that  in  case  the  judge  is  unable  to 
settle  the  bill  of  exceptions  and  counsel  cannot  settle  it  by  agree- 
ment a  new  trial  shall  be  granted,  and  that  this  court  regard 
that  rule  as  applying  to  the  case  in  hand,  and  that  hence  a  new 
trial  was  a  matter  of  course. 

In  Young  v.  Martin,  8  AVall.  354,  where  the  exceptions  were 
noted  by  the  clerk  of  the  trial  court  and  so  appeared  in  the  rec- 
ord, it  was  held  that  "to  be  of  any  avail  exceptions  must  not 
only  be  drawn  up  so  as  to  present  distinctly  the  ruling  of  the 
court  upon  the  points  raised,  but  they  must  be  signed  and  sealed 
by  the  presiding  judge.  Unless  so  signed  and  sealed  they  do  not 
constitute  any  part  of  the  record  which  can  be  considered  by  an 
Appellate  Court." 

In  Origet  v.  United  States,  125  U.  S.  240,  243,  the  record 
contained  a  paper  headed  "Bill  of  Exceptions."  At  the  foot  of 
the  paper  appeared  the  following:  "Allowed  and  ordered  on 
file,  Nov.  22,  '83.  A.  B."  And  it  was  held,  "This  cannot  be 
regarded  as  a  proper  signature  by  the  judge  to  a  bill  of  excep- 
tions, nor  can  the  paper  be  regarded  for  the  purposes  of  re- 


MALONY    V.    ADSIT.  l&'i 

view  as  a  bill  oi"  exceptions.  *  *  *  Section  953  of  the  Re- 
vised Statutes  merely  dispensed  with  the  seal.  The  necessity  for 
the  signature  still  remains.  We  cannot  regard  the  initials  'A.  B.' 
as  the  signature  of  the  judge,  or  as  a  sufficient  authentication 
of  the  bill  of  exceptions,  or  as  sufficient  evidence  of  its  allow- 
ance by  the  judge  or  court.  Therefore  the  questions  purport- 
ing to  be  raised  by  the  paper  cannot  be  considered. ' ' 

In  State  v.  AVeiskittle,  61  Maryland,  51,  it  was  said:  "In 
this  State  it  is  not  admissible  for  another  judge  to  pass  upon 
the  correctness  of  his  predecessor's  ruling  in  such  a  case.  The 
new  trial  will  go  as  a  matter  of  course." 

It  certainly  cannot  be  contended  that  if  the  trial  judge  is  able 
officially  to  sign  the  bill  of  exceptions,  it  would  be  competent 
for  the  counsel  to  dispense  with  his  action,  and  rely  upon  an 
agreed  statement  of  the  facts  and  law  of  the  case  as  tried.  Nor 
can  they  agree  that  another  than  the  trial  judge  may  perform 
his  functions  in  that  regard.  In  Lynde  v.  Craney,  95  Michigan, 
109,  it  was  said  that  the  practice  of  stipulating  a  bill  of  excep- 
tions without  the  sanction  of  the  judge  cannot  be  commended; 
and  if  such  fact  be  brought  to  the  attention  of  the  court  before 
the  argument  of  the  case,  the  appeal  wdll  be  dimissed. 

In  Coburn  v.  Murray,  2  Maine,  336,  it  was  held  that  a  bill  un- 
authenticated  by  the  trial  judge  cannot  be  given  validity  by  con- 
sent of  counsel. 

We  are  referred  to  no  decision  of  this  court  on  the  precise 
question  whether  counsel  can  stipulate  the  correctness  of  a  bill 
of  exceptions  not  signed  by  the  trial  judge.  But  we  think  that 
on  principle  this  cannot  be  done,  and  we  regard  the  cases  just 
cited  as  sound  statements  of  the  law. 

Accordingly,  our  conclusion  is  that  the  errors  of  the  trial 
court  alleged  in  the  bill  of  exceptions,  unauthenticated  by  the 
signature  of  the  judge  who  sat  at  the  trial,  cannot  be  considered 
by  us.^ 

The  defendant's  demurrer  to  the  complaint,  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action, 
having  been  overruled,  and  the  defendant  not  having  elected  to 
stand  on  his  demurrer,  but  having  availed  himself  of  the  leave 
of  the  court  to  file  an  answer,  and  his  several  objections  to  the 
admission  of  evidence  at  the  trial  not  having  been  brought  be- 

1  See  also  Fulkerson  v.  Hauts,  55 
Mo.  301. 


764  BILLS   OF   EXCEPTIONS.  [ChaP.    VII. 

fore  us  by  a  proper  bill  of  exceptions,  all  that  is  left  for  us  to 
consider  is  whether,  on  the  facts  found  by  the  court  below,  the 
plaintiff  was  entitled  to  judgment.     *     *     * 


POMEEOY  V.  STATE  BANK  OF  INDIANA. 

1  Wallace,  592.     [1863.] 

Ejectment  for  certain  land  in  the  State  of  Indiana.  There  was 
a  verdict  and  judgment  for  the  defendant,  and  the  plaintiff  sued 
out  a  writ  of  error. 

Mr.  Justice  Clifford,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

Exceptions  to  the  first  bill,  as  written  out  and  sealed,  are 
plainly  and  undeniably  to  the  overruling  of  the  motion  for  a 
new  trial,  and  to  the  subsequent  entry  of  the  judgment  and  not 
to  the  rulings  of  the  court  as  to  the  validity  of  the  trust  deed 
or  its  legal  effect  as  a  paramount  title  over  that  claimed  by  the 
lessors  of  the  plaintiff. 

Authorities  are  numerous  that  a  motion  for  a  new  trial  in 
the  Federal  Courts  is  a  motion  addressed  to  the  discretion  of  the 
court,  and  that  the  decision  of  the  court  in  granting  or  refusing 
it  is  not  the  proper  subject  of  a  bill  of  exceptions.  Henderson 
v,  Moore,  5  Cran.  11 ;  Mar.  Ins.  Co.  v.  Young,  id.  187 ;  McLana- 
han  v.  The  Universal  Ins.  Co.,  1  Pet.  183 ;  U.  S.  v.  Buford,  3  id. 
32;  Barr  v.  Gratz,  4  Wheat.  213;  Blunt  v.  Smith,  7  id.  248; 
Brown  v.  Clarke,  4  How.  4. 

Indeed,  the  universal  rule  of  practice  is  that  matters  resting 
entirely  in  discretion  are  not  re-examinable  in  a  court  of  errors, 
and  there  can  be  no  departure  from  that  rule  in  this  court  with- 
out overruling  its  settled  practice  from  the  organization-  of  the 
court  to  the  present  time.  Presumption,  therefore,  in  this  court 
is,  that  the  motion  for  new  trial  was  properly  denied,  and  if  so, 
then  the  defendants  were  entitled  to  judgment.  Ruling  of  the 
court  was  that  the  trust  deed  was  the  paramount  title,  and  to 
that  ruling  no  exception  was  taken,  and  consequently,  when  the 
motion  for  new  trial  was  overruled,  the  right  of  the  defendants 
to  judgment  became  complete.  Entry  of  judgment,  therefore, 
was  properly  made,  and  the  exception  to  the  action  of  the  court 


POMEROY    V.    STATE   BANK   OF   INDIANA.  765 

in  that  behalf,  as  erroneous,  is  without  any  foundation  whatever. 
Error  of  the  court,  if  any,  was  in  the  ruling  that  the  trust  deed 
was  the  paramount  title,  and  if  the  plaintiff  desired  to  sue  out 
a  writ  of  error  to  revise  that  ruling,  he  should  have  excepted  to 
it  at  the  time  it  was  made.  Y.  &  C.  Railroad  Co.  v.  Myers, 
18  How.  251. 

He  insists  that  he  did  so,  because  it  is  so  stated  in  the  minutes 
of  the  case  as  appears  in  the  transcript,  but  the  insuperable 
difficulty  in  supporting  that  proposition  is,  that  nothing  of  the 
kind  appears  in  the  bill  of  exceptions.  Where  exceptions  are 
taken  to  the  ruling  of  the  court  in  the  course  of  a  trial  to  the 
jury,  such  an  entry  is  frequently  made  in  the  minutes  of  the 
case,  or  of  the  presiding  justice,  as  evidence  of  the  fact,  and  as 
a  means  of  preserving  the  rights  of  the  party  in  case  the  verdict 
should  be  against  him  and  he  should  desire  to  have  the  ease 
re-examined  in  the  appellate  tribunal,  but  it  was  never  sup- 
posed that  such  an  entry  could  be  of  any  benefit  to  the  party 
unless  he  seasonably  availed  himself  of  the  right  to  reduce  the 
same  to  writing,  and  took  proper  measures  to  have  the  bill  of 
exceptions  sealed  by  the  judge  presiding  at  the  trial,  or,  in  other 
words,  such  an  entry  in  the  minutes  can  only  be  regarded  as 
evidence  of  the  right  of  the  party  seasonably  to  demand  a  bill 
of  exceptions,  but  it  is  not  the  same  thing,  and  has  never  been 
so  considered  in  the  Federal  Courts,  or  in  any  other  jurisdiction 
where  the  rules  and  practice  of  the  common  law  prevail. 

II.  Authority  was  conferred,  by  the  seventeenth  section  of  the 
Judiciary  act,  upon  all  the  courts  of  the  United  States,  to  make 
and  establish  all  the  necessary  rules  for  the  ordinary  conduct- 
ing of  business  in  the  said  courts,  provided  such  rules  were  not 
repugnant  to  the  laws  of  the  United  States.  (1  Statutes  at 
Large,  83.) 

Pursuant  to  that  authority  the  several  Circuit  Courts,  im- 
mediately after  th(;  judicial  system  of  the  United  States  was 
organized,  adopted  the  form  for  bills  of  exceptions  as  known  at 
common  law,  and  tlie  practice  has  been  uniformly  followed  to 
the  present  time,  without  question  or  any  material  variation. 
Bills  of  exceptions,  therefore,  in  the  Federal  Courts  are  required 
to  be  drawn  as  at  common  law,  under  the  statute  of  Westminster 
2  (13  Edw.  I,  Chap.  31),  passed  in  the  year  1285,  and,  of  course, 
they  must  be  sealed  by  the  judge,  as  therein  required.     1  Pick. 


766  BILLS   OF   EXCEPTIONS.  [ChAP.    VII, 

Stat.,  206;  2  Tidd's  Practice,  862;  1  Arch.  Prac.  by  Chitty  (11th 
ed.),  443;  2  Inst.  ,427;  2  Bac.  Ahr.  by  Bouvier,  113. 

Justiciarii  apponant  sigilla  sua,  is  the  express  command  of  the 
statute,  and  so  is  the  commentary  of  Lord  Coke,  which  has 
always  been  regarded  as  of  the  same  authority  as  the  statute  on 
which  it  is  founded.  2  Inst.  428;  Strother  v.  Hutchinson,  4 
Bing.  N.  C.  89. 

Party  aggrieved  might,  before  the  enactment  of  that  statute, 
sue  out  writ  of  error  to  correct  an  error  in  law  apparent  on  the 
record,  or  for  an  error  of  fact,  where  either  party  had  died 
before  judgment ;  but  the  writ  would  not  lie  for  an  error  in  law 
not  apparent  on  the  record,  as  for  a  refusal  to  instruct  the  jury 
as  requested,  or  for  an  erroneous  instruction  given,  or  for  an 
erroneous  ruling  in  admitting  or  rejecting  evidence.  Conse- 
quently, where  either  party  alleged  anything  ore  temis,  which 
was  overruled  by  the  court,  the  party  was  without  remedy;  be- 
cause, being  an  error  in  law,  and  not  apparent  in  the  record, 
the  appellate  tribunal  could  not  take  judicial  knowledge  of  the 
proceeding.  Statute  under  consideration  was  passed  to  obviate 
that  difficulty,  and  to  prevent  the  injustice  flowing  from  it,  and 
throughout  the  long  period  it  has  continued  in  force  it  has  ever 
been  regarded  as  an  eminently  just  and  highly  beneficial  regu- 
lation. "Writs  of  error,  it  is  true,  bring  up  the  whole  record, 
and  it  is  undeniably  competent  for  the  court  to  reverse  the 
judgment  for  any  apparent  error,  whether  it  appear  in  the  bill 
of  exceptions  or  in  any  other  part  of  the  record.  Slacura  v. 
Pomery,  6  Cran.  221 ;  Cohens  v.  Virginia,  6  Wheat.  410 ;  Garland 
V.  Davis,  4  How.  131 ;  Bennett  v.  Butterworth,  11  id.  669. 

But  when  a  party  is  dissatisfied  with  the  decision  of  his  cause 
in  an  inferior  court,  and  intends  to  seek  a  revision  of  the  law 
applied  to  the  case  in  a  superior  jurisdiction,  he  must  take  care 
to  raise  the  questions  of  law  to  be  revised,  and  put  the  facts  on 
the  record  for  the  information  of  the  appellate  tribunal;  and 
if  he  omits  to  do  so  in  any  of  the  methods  known  to  the  practice 
of  such  courts,  he  must  be  content  to  abide  the  consequence  of 
his  neglect  or  oversight.     Suydam  v.  Williamson,  20  How.  433. 

Unless  an  exception  is  reduced  to  writing  and  sealed  by  the 
judge,  it  is  not  a  bill  of  exceptions  within  the  meaning  of  the 
statute  authorizing  it,  and  it  does  not  become  part  of  the 
record. 

Were  it  otherwise,  then  a  bill  of  exceptions  would  never  be 


POMEROY    V,    STATE   BANK    OF   INDIANA.  767 

necessary ;  because  if  the  statement  in  the  minutes  is  sufficient  in 
one  case  it  must  be  in  all,  which  cannot  for  a  moment  be  ad- 
mitted, as  it  would  overturn  the  unbroken  practice  in  courts  of 
error  from  the  passage  of  the  statute  of  Westminster  to  the 
present  time.  Seal,  as  required,  is  to  the  bill  of  exceptions,  and 
not  to  each  particular  exception  therein  contained.  Many  ex- 
ceptions may  be  inserted  in  one  bill  of  exceptions,  and,  of  course, 
it  is  sufficient  if  the  bill  of  exceptions  is  sealed  at  the  close. 
Accordingly,  the  practice,  in  the  first  and  second  circuits,  is 
to  put  every  exception  taken  at  the  trial  into  one  bill  of  excep- 
tions, which  makes  the  records  less  voluminous. 

III.  Second  bill  of  exceptions,  so  called,  is  denominated  the 
"case"  in  the  record,  and  extends  through  more  than  fifty  pages 
of  the  transcript.  First,  it  contains  all  of  the  evidence  and 
exhibits  introduced  by  the  lessors  of  the  plaintiff,  and  the  record 
shows  that  portions  of  the  same  were  admitted  under  the  objec- 
tion of  the  defendants,  and  other  portions  without  objection. 
When  objections  were  made  and  overruled,  it  is  stated  in  some 
instances  that  the  defendants  excepted,  and  in  others  that  state- 
ment is  omitted.  Evidence  offered  by  the  lessors  of  the  plaintiff 
in  one  instance  was  rejected,  and  in  that  case  it  is  stated  that 
the  plaintiff  excepted.  On  the  other  hand,  it  contains,  in  the 
second  place,  all  the  evidence  and  exhibits  introduced  by  the 
defendants,  whether  admitted  under  objection  or  without  objec- 
tion, and  as  in  the  case  of  the  lessors  of  the  plaintiff,  when  the 
objection  made  w^as  overruled  by  the  court,  it  is  in  some  instances 
stated  that  the  plaintiff  excepted  to  the  ruling,  and  in  others 
that  statement  is  omitted.  Matters  so  introduced  on  the  one  side 
and  the  other  consist  of  judicial  records,  written  instruments, 
depositions,  oral  testimony,  and  certain  other  facts,  either  abso- 
lutely admitted  by  the  parties  or  their  counsel,  or  provisionally 
introduced,  subject  to  the  opinion  of  the  court  as  to  their 
admissibility  and  legal  effect.  Rulings  of  the  court,  as  stated  in 
the  first  bill  of  exceptions,  are  not  given,  nor  is  it  stated  what 
was  the  final  judgment  of  the  court.  Appended  to  the  statement 
are  the  signatures  of  the  respective  counsel,  and  the  conclusion 
of  the  paper  is  as  follows:  "This  was  all  the  evidence  in  the 
case,  and  the  plaintiff  prays  that  this  his  bill  of  exceptions  may  be 
signed,  sealed  and  made  a  part  of  the  record  herein,  which  is 
done,"  and  the  same  is  signed  by  the  presiding  justice,  and  is 
under  his  seal. 


768  BILLS   OP   EXCEPTIONS.  [ChAP.    VII. 

IV.  Nothing  further  need  be  remarked  to  show  that  no  proper 
foundation  is  there  laid  for  the  revision  of  the  rulings  of  the 
court,  to  which  the  lessors  of  the  plaintiff  now  object,  because 
those  rulings  are  not  mentioned  in  the  paper,  so  that  even  if  it 
could  be  regarded  as  a  bill  of  exceptions,  it  would  be  equally- 
unavailing  to  the  plaintiff  as  a  means  of  accomplishing  the 
object  he  desires.  Where  the  objection  is  to  the  ruling  of  the 
court,  it  is  indispensable  that  the  ruling  should  be  stated,  and  it 
should  also  be  alleged  that  the  complaining  party  then  and  there 
excepted  to  the  same.  Both  conditions  are  wanting,  and  indeed 
the  paper  is  irregular  or  defective,  and  insufficient  in  many  of 
the  substantial  elements  of  a  proper  bill  of  exceptions. 

V.  Suggestion  was  also  made  at  the  argument,  that  if  the 
paper  was  not  available  to  the  plaintiff,  as  a  bill  of  exceptions, 
still  the  evidence,  as  reported,  might  subserve  his  purpose  as  an 
agreed  statement  of  facts ;  but  we  think  not,  for  several  reasons : 

First.  Because  it  merely  gives  the  evidence  as  it  was  introduced 
on  the  one  side  and  the  other,  and  leaves  the  results  of  the  evi- 
dence to  be  found  by  the  court,  as  if  sitting  as  a  jury. 

Secondly.  Because  it  does  not  contain  the  rulings  of  the  court 
which  the  plaintiff  desires  to  have  revised ;  and. 

Thirdly.  Because  if  both  the  preceding  objections  were  obvi- 
ated/ still  it  would  not  be  competent  to  revise  the  rulings  of  the 
court  below  in  that  mode.  2  Tidd's  Practice,  896;  Seward  v. 
Jackson,  8  Cow.  406. 

Decisions  of  this  court  establish  the  rule  that  writs  of  error 
will  lie  where  the  judgment  in  the  court  below  was  founded  upon 
an  agreed  statement  of  facts,  as  well  as  when  founded  upon  the 
verdict  of  a  jury.  U.  S.  v.  Eliason,  16  Pet.  291 ;  Stimpson  v. 
Railroad  Co.,  10  How.  329 ;  Graham  v.  Bayne,  18  id.  60. 

Judgments  of  the  Circuit  Court  may  also  be  revised  here  upon 
writ  of  error,  in  cases  where  they  were  founded  upon  a  special 
verdict,  or  upon  demurrer  to  evidence.  Suydam  v.  Williamson 
et  al.,  20  How.  435 ;  4  Chitty's  Gen.  Prac,  7 ;  2  Inst.  427. 

None  of  the  modes  suggested,  however,  enable  the  complaining 
party  to  review  or  re-examine  the  rulings  of  the  court,  except 
that  of  the  bill  of  exceptions.     *     *     * 

Affirmed. 


TABLE  OF  CASES 


[references  are  to  pages] 


Abbott  V.  Semple,  25  111.  91:  102. 
Acton  V.  Coffmau,  74  la.  17:  647. 
Adler,   Chicago   Ry.    Co.   v.,   56    111. 

344:    248. 
Adler,  Koehler  v.,  78  N.  Y.  287 :   368. 
Adsit,   Maloney  v.,   175   U.   S.   281: 

760. 
Alden  v.  Carpenter,  7  Col.  87:    214. 
Alexander,  Walpole  v.,  3  Doug.  45: 

63. 
Alexandria,  Fowle  v.,  11  Wheat.  320  : 

301. 
Allen,  Bickerdike  v.,  157  111.  95 :  134. 
Allen,  Eggett  v.,  106  "Wis.  633 :  530. 
Allen,  Swanson  v.,  108  la.  419:  534. 
AUis  V.  Leonard,  58  N.  Y.  288 :  542. 
Alterton  v.  Shauer,  151  U.  S.  607: 

510. 
American  Cereal  Co.  v.  Petijohn,  70 

Fed.  276:    161n. 
Amy  V.  Watertown,  130  U.  S.  301: 

47. 
Andeison   v.    George,    1   Bnrr.    352: 

728. 
Anderson,  State  v.,  81  Mo.  78:    335n. 
Anonymous,  Bellewe,  251 :    383. 
Anonymous,  Bellewe,  252  :    384. 
Anonymous,  1  Chitty,  129:    89. 
Anonymous,  19  H.  VI,  47:     514n. 
Anonymous,  14  H.  VII,  1 :     683. 
Anonymous,  1  Keb.  864:     693. 
Arms   Co.,   Oscanyan  v.,   103   U.   S. 

261:     339. 
Arnold  v.  Johnson,  1  Stra.  267 :     375. 
Artz  V.  C.  E.  I.  &  P.  Ry.  Co.,  34  la. 
153:     336. 

H.  T.  P.— 4  9 


Ash  V.  Ash,  Comb.  357:     687n. 
Ashby  V.  Shenandoah  Ry.  Co.,  86  Va. 

232:     162. 
Ashley    v.    Ashley,    2    Stra.    1142: 

694n. 
Attaway,  Central  Ry.  Co.  v.,  90  Ga. 

656:     517. 
Authier,  Sav.  Bk.  of  St.  Paul  v.,  52 

Minn.  98:     46. 


B 


Bailey,    Winslow    v.,    16    Me.    319: 

267. 
Baker    v.    Madison,    62    Wis.    137: 

428. 
Baker,  Middleton  v.,  Cro.  Eliz.  752: 

286. 
Baker    Min.    Co.    v.    British    Queen 

Min.  Co.,  139  U.  S.  222:     673. 
Baker  v.  Summers,  201  111.  52:     532. 
Baldwin,  Maryland  v.,  112  U.  S.  490 : 

619n. 
Bank  of   Washington,    Thornton   v., 

3  Pet.  36:     305. 
Bardwell   v.    Collins,    44   Minn.   97: 

139. 
Barker  v.  Dixie,  2  Stra.  1051 :     688. 
Barker  v.  Keat,  5  Mod.  208:     385. 
Barlow,  Birt  v.,  1  Doug,  171:     736. 
Barnes  v.  Williams,  11  Wheat.  415: 

635. 
Barr  v.  Kansas  City,  105  Mo.  550: 

546. 
Barr  v.  Satchwell,  2  Stra,  813 :     154. 
Barrett,  Crease  v.,  1  C.  M.  &  R.  919: 

721. 


769 


770 


TABLE   OF    CASES. 


[references  are  to  pages] 


Barrington,  Searle  v.,   2  Stra.   826: 

402. 
Bartelott  v.   Int.  Bk.,   119  111.  259: 

330n. 
Bass  V.  Kublee,  76  Vt.  395 :     355. 
Bates,  German  Sav.  Bk.  v.,  Ill  la. 

432:     371. 
Bates,  Prentis  v.,  93  Mich.  234:    419. 
Baylis  v.  Lucas,  1  Cowp.  112:     224n. 
Beam,  Harris  v.,  46  la.  118:     389n. 
Beaumont  v.  Beaumont,  152  Fed.  55 : 

550. 
Becquet  v.   MacCarthy,   2  B.  &  Ad. 

951:     108. 
Bee  Bldg.  Co.  v.  Dalton,  68  Neb.  38 : 

395. 
Belcher,  Palmer  v.,  21  Neb.  58:     44. 
Bell,  Cunningham  v.,  5  Mason,  161: 

743. 
Belt  V.  Goode,  31  Mo.  128:     455. 
Benjamin,  Warner  v.,  89  Wis.  290: 

509. 
Bennett    v.    Butterworth,    11    How. 

669:     620. 
Bennett,    Murphy   v.,    68    Cal.    528: 

677. 
Berger  v.  Varrelman,  127  N.  Y.  281 : 

674. 
Berks  v.  Mason,  Sayer,  264:     694. 
Berry,  Cooke  v.,  1  Wilson  98:     729. 
Berry,  Savage,  2  Scam.  261 :    387. 
Beuttell  V.  Magone,  157  U.  S.   154: 

366. 
Beyer   v.   Cont'l  Trust  Co.,   63   Mo. 

App.  521:      129. 
Bickerdike  v.  Allen,  157  lU.  95 :     134. 
Birkbeck,  Cort  v.,  1  Doug.  218:     291. 
Birt  V.  Barlow,  1  Doug.  171:     736. 
Bishop  V.  Vose,  29  Conn.  1:     69. 
Bisset,  Worsley  v.,  3  Doug.  58 :     203. 
Bitton,  Solomon  v.,  L.  E.  8  Q.  B.  D. 

177:     703n. 
Black  V.  Thornton,  31  Ga.  641 :     594. 
Blanehard,    Hobbs    v..    Style    167: 

624n. 
Blenkiron  v.  Gas  Co.,  2  Fos  &  Fin. 

437 :     385n. 


Blewitt   V.    Marsden,    10   East   237: 

178. 
Bogk  V.  Gassert,  149  U.  S.  17 :     361. 
Boiun,    Fitz-Harris   v.,    1    Lev.    87: 

291. 
Boland,  Shaw  v.,  15  Gray  571:     386. 
Boley,  Doan  v.,  38  Mo.  449 :    6. 
Boston,  Richardson  v.,  19  How.  263 : 

324. 
Botsford    v.    O 'Conner,    57    111.    72: 

150. 
Bournonville  v.   Goodall,   10  Pa.  St. 

133:     410n. 
BowdeU   V.    Parsons,    10    East   359: 

185. 
Bradstreet,    Ex    parte,    4   Pet.    102 : 

755. 
Bright  V.  Eynon,  1  Burr.  390 :     695. 
Brinkley,  Ind.  &  Ark.  Lumb.  Co.  v., 

164  Fed.  963:      24. 
British    Queen    Min.    Co.    v.    Baker 

Min.  Co.,  139  U.  S.  222:     673. 
Britton,  Garland  v.,  12  111.  232 :     17. 
Broadhead  v.  Haggett  's  Ex  'r,  2  Wm. 

Black.  955:     730. 
Broadhurst    v.    Hill,    137    Ga.    833: 

367n. 
Browder's  Admr.,   HaU  v.,   4   How. 

224:     288. 
Brown,   Tindal  v.,   1   Term  E.   167: 

431. 
Browning   v.   Wabash  By.   Co.,    124 

Mo.  55:     580. 
Bruce    v.    Eawlins,    3    Wilson    61 : 

187n. 
Brusseau  v.  Lower  Brick  Co.,  133  la. 

245:    529. 
Bryan,  C.  B.  &  Q.  Ey.  Co.  v.,  90  111. 

126:    415. 
Bulkeley  v.  Butler,   2  B.  &  C.  434: 

319n. 
Bullard,  Castle  v.,  23  How.  172 :    375. 
Burham   v.    North   Chicago   Ey.,    88 

Fed.  627:    661. 
Burrows,    Nudd    v.,   91    U.    S.    426: 

543. 
Burt  v.  Panjaud,  99  U.  S.  180:    239. 
Burton  v.  State,  107  Ala.  108:    271. 


TABLE   OF    CASES. 


771 


[references  are  to  pages] 


Buscall  V.  Hogg,  3  Wilson  146 :    403. 
Bushell's  Case,  Vaughn  135:    311. 
Butler,  Bulkeley  v.,  2  B,  &  C.  434: 

319n. 
Butler,    Dorant    v.,    3    Taunt.    229: 

404n. 
Eutler,  Ellis  v.,  78  la.  632:    194. 
Butterworth,    Bennett    v.,    11    How. 

669:    620. 


Caledonia  Min.  Co.,  Noonan  v.,  121 

U.  S.  393:    282. 
Callender,    St.    John's   Lodge   v.,    4 

Ired.  335:    377. 
Callery,  Semple  v.,   184  Pa.  St.  95: 

269. 
Calvert,  McKee  v.,  80  Mo.  348:    616. 
Capen  v.   Stoughton,   16   Gray   364: 

606. 
Capital  &  C.  Bk.  v.  Henty,  L.  E.  7 

App.  Cas.  741:    482. 
Capron,  Cox  v.,  10  Mo.  691:    177. 
Carpenter,  Alden  v.,  7  Col.  87 :    214. 
Carpenters,    Co.    of,   v.   Hayward,    1 

Doug.  374:    319. 
Carroll,  Chicago  Ry.  Co.  v.,  206  111. 

318:    276. 
Case  V.  Humphrey,  6  Conn.  130:    8. 
Case,  Kearney  v.,  12  Wall.  275 :  653. 
Cass  Ave.  Ry.,  McCarthy  v.,  92  Mo. 

536:    249. 
Castle  v.  Bullard,  23  How.  172 :    375. 
Caswell  v.  Hunton,  87  Me.  277:    505. 
Catlin,  Strong  v.,  3  Pinney  121 :    188. 
Cedar  Rapids  Ey.,   Hall  v.,   115  la. 

18:    581. 
Central  Ry.  Co.  v.  Attaway,  90  Ga. 

656:    517. 
Central    Transp.    Co.    v.    Pullman's 

Car  Co.,  139  U.  S.  24:    410. 
Cham   v.    Matthew,   Cro.   Eliz.    581: 

222. 
Champion,  Sowell  v.,  6  Ad.  &  E.  407 : 

332. 
Chateaugay  Iron  Co.,  In  re,  128  U.  S. 

544:    759n. 


Cheever,   Lombard  v.,  3  Gilm.  469: 

407. 
Chevalier    D  'Eon,    Rex   v.,    3    Burr. 

1513:    200. 
C.  &  A.  Ry.  Co.,  Yarber  v.,  235  111. 

589:    745. 
C.  B.  &  Q.  Ry.  Co.,  Bryan  v.,  90  111. 

126:    415. 
C.  B.  &  Q.  Ry.  Co.,  Nelson  v.,  225 

111.  197:     143. 
C.  &  M.  Ry.  Co.,  Imhoff  v.,  20  Wis. 

344:    522. 
C.  &  N.  W.  Ry.  Co.  V.  Dimmick,  96 

111.  42:    737. 
Chicago   Plan.    MUl   v.    Bk.,    97    111. 

294:    165. 
C.  R.  L  &  P.  Ry.  Co.,  Artz  v.,  34  la. 

153:    .336. 
Chicago  Ry.  Co.  v.  Alder,  56  111.  344 : 

248. 
Chicago  Ry.  Co.  v.  Carroll,  206  111. 

318:    276. 
Chicago   Trac.   Co.,  Wallner   v.,   245 

111.  148:    344. 
Chichester  v.  Philips,   T.  Ray.  404: 

317. 
Christy,  Tancred  v.,  12  M.  &  W.  316: 

630. 
Clark,  Mayor  of  Devises  v.,  3  Ad.  & 

E.  506:    609. 
Clarkson,  Mackubin  v.,  5  Minn.  247 : 

204. 
Clement,  Delahay  v.,  4  111.  201 :    1  OOn. 
Clerk  V.  Martin,  1  Salk.  129 :    612. 
Cleveland,   Maynard  v.,   76   Ga.   52: 

207. 
Clinton    v.     Englebrecht,     13     Wall. 

434:    227. 
Clough  V.  Moore,  63  N.  H.  Ill:    190. 
Cock,    Fabrilius    v.,    3    Burr.    1771: 

724. 
Coffey,  Ogle  v.,  2  111.  239:     147. 
Coffman,  Acton  v.,  74  la.   17:    647. 
Cole  v.  Hawkins,  2  Stra.  1094:    62. 
Colhoun  v,   Crawford,   50   Mo.   458: 

219. 
College   of  Physicians   v.   Levett,   1 

Ld.  Ray.  472:    318. 


772 


TABLE   OF    CASES. 


[references 
Colley  V.  Galyon,  109  Tenn.  1 :  308. 
Collins,   Bardwell  v.,   44   Minn.   97: 

139. 
Collins  V.  Page,  Style  124:    174. 
CoUison  V.  I.  C.  E.  E.  Co.,  239  111. 

532:    262. 
Columbian   Gran.   Co.   v.   Townsend, 

74  Vt.  183  :    155. 
Conner  v.  Sampson,  22  Tex.  20  :    206. 
Connors   v.   U.   S.,    158   U.    S.   408: 

238n. 
Cont'l  Trust  Co.,  Beyer  v.,  63   Mo. 

App.  521:    129. 
Cook,  Eandolph  v.,  2  Port  286 :     182. 
Cook,  Eigg  v.,  9  111.  336:    597. 
Cooke  V.  Berry,  1  Wilson  98:    729. 
Cooke,  Lord  v.,  1  Wm.  Blaak,  436: 

199. 
Cooper,  McKenna  v.,   79  Kan.  847 : 

28. 
Copeland  v.  New  Eng.  Ins.   Co.,   22 

Pick.  135:    307n. 
Cort  V.  Birkbeck,  1  Doug.  218:    291. 
Cossar  v.  Eeed,  17  Q.  B.  (n.  s.)  540: 

404. 
Costley   V.    McGowan,    175    111.    76: 

519. 
Cottrell,  Flanders   v.,   36   Wis.   564: 

519. 
Coupland,  Parminter  v.,  6  M.  &  W. 

105:    472. 
Cove,  Hale  v.,  1  Stra.  642:    684. 
Covell  V.  Marks,  2  111.  525:    219. 
Cox  V.  Capron,  10  Mo.  691:    177. 
Craig   V.    Gisborne,    79    Mass.    270: 

55. 
Crawford,  Colhoun  v.,  50  Mo.  458: 

219. 
Crawford  v.  Oman,  34  S.  C.  90 :    448. 
Crease  v.  Barrett,  1  C.  M.  &  E.  919 : 

721. 
Creason's    Ex'r.   v.   Smith,    5    Dana 

298:   213. 
Crerar  v.  Daniels,  209  111.  296 :    670. 
Crump,  Wright  v.,  7  Mod.  1:    318n. 
Cunningham  v.  Bell,   5  Mason  161: 

743. 


ARE  TO  PAGES] 

Cunningham   v.   Gallagher,   61   Wis. 

170:    416. 
Cunningham  v.  Washburn,  119  Mass. 

224:    445. 


D 


Dale  V.  Heald,  1  C.  &  K.  314:    203. 
Dalton,   Bee  Bldg.  Co.  v.,  68   Neb. 

38:    395. 
Dana  v.  Tucker,  4  Johns.  487:    684. 
Daniels,    Crerar    v.,    209    111.    296: 

670. 
Darling,  Forbes  v.,  94  Mich.  621 :    7n. 
Dart  V.  Hercules,  34  111.  395 :    108n. 
Davidson  v.  Stanley,  2  M.  &  G.  721: 

539. 
Davies,  Jenkins  v.,  10  Ad.  &  E.   (n. 

s.)  314:    266. 
Davies  v.  Eoper,  2  Jur.   (n.  s.)  167: 

715n. 
Davis  V.  Hardy,  6  B.  &  C.  225 :    350. 
Dawson,  Turquand  v.,  1  C.  M.  &  E. 

709:    731. 
Day  V.  Samson,  Barnes  448:    199. 
DeCrouy,  Goubot  v.,  1  C.  &  M.  772: 

154. 
Delahay  v.  Clement,  4  111.  201:    lOOn. 
Delaplaine,  Fladland  v.,  19  Wis.  459 : 

36. 
Demming  v.   Weston,   15   Wis.   236 : 

676. 
Denny  v.  Williams,  5  Allen  1:    324n. 
Dexter  v.  Handy,  13  E.  I.  474:    726. 
Dillon  v.  Heller,  39  Kan.  599:    115. 
Dilly  V.  O.  &  St.  L.  Ey.  Co.,  55  Mo. 

App.  123:    658. 
Dimmick,  C.  &  N.  W.  Ey.  Co.  v.,  96 

111.  42:    737. 
District  of  Columbia,  Humphries  v., 

174  U.  S.  190:    600. 
Dixie,  Barker  v.,  2  Stra.  1051:    688. 
Doan  V.  Boley,  38  Mo.  449 :    6. 
Dobbs  V.  Passer,  2  Stra.  975:    189. 
Donahue  v.  Windsor  Ins.  Co.,  56  Vt. 

374:    438. 
Dorant,    Butler    v.,    3    Taunt.    229: 

404n. 


TABLE   OF   CASES. 


773 


[references 
Douglas  V.  Forrest,  4  Bing.  686 :  22. 
Douglass  V.  Hill,  29  Kan.  527:  412. 
Douglass   V.   Tousey,   2   Wend.   352 : 

604. 
Dowdell  V.  Wilcox,  64  la.  721 :    423. 
Drummond  v.  L.  &  N.  Ey.  Co.,  109 

Fed.  531:    399. 
Dunbar  v.  Parks,  2  Tyler  217:    240. 
Dunlap,  Wallingford  v.,   14  Pa.   St. 

31:    631. 

E 

Eades,   Woodford   v.,    1    Stra.    425: 

687. 
Earle  v,  McVeigh,  91  U.  S.  503 :    59. 
Eddowes  v.  Hopkins,  1  Doug.  376: 

614. 
Eddy  V.  Gray,  4  Allen,  435 :    558. 
Eggett  V.  Allen,  106  Wis.  633 :    530. 
Ehlers,  Muller  v.,  91  U.  S.  249:    758. 
Elliott  V.  Ey.,  2  Exch.  725 :    459. 
Ellis  V.  Butler,  78  la.  632 :    194. 
Empson  v.  Griffin,  11  Ad.  &  E.  186 : 

617. 
Englebrecht,    Clinton    v.,    13    Wall. 

434:    227. 
Englefield,    Young    v.,    Godb.    328: 

401. 
Eschbach  v.  Hurtt,  47  Md.  61 :    283. 
Evans  V.  Pond,  30  Mo.  235 :    205. 
Exley,   Hoggett  v.,   9  C.  &  P.  324: 

414. 
Eynon,  Bright  v.,  1  Burr.  390 :    695. 

F 

Fabrilius    v.    Cock,    3    Burr.    1771 : 

724. 
Fant,    Pleasents   v.,    22    Wall.    IIG: 

325. 
Farley,  Gas  Co.  v.,  95  Ga.  796:    741n. 
Feary  v.  Metropolitan  Ey.  Co.,  162 

Mo.  75:    565. 
Feeney,  Wassum  v.,   121   Mass.   93: 

716n. 
Fenwiek  v.  Logan,  1  Mo.  401:    625. 
Filisker,    Worsley    v.,    2    EoUe   217: 

286. 


ARE  TO  PAGES] 

Finch,  Westall  v.,  Barnes  406:  79. 
Finney  v.  Guy,  189  U.  S.  335:  461. 
First    Nat'l   Bk.,    Hindman    v.,    112 

Fed.  931:    589. 
First  Nat  '1  Bk.  v.  N.  W.  Nat  '1  Bk., 

153  111.  296:    667. 
Fisher,  Eichardson  v.,  7  Moore,  546: 

726. 
Fitz-Harris,    Boiun    v.,    1    Lev.    87: 

291. 
Fladland  v.  Delaplaine,  19  Wis.  459: 

36. 
Flanders   v.    Cottrell,   36   Wis.   564: 

519. 
Fletcher  v.  London  &  C.  Ey.,  L.  E. 

(1892)  1  Q.  B.  D.  122:    337. 
Foley,  Toof  v.,  87  la.  8 :    400. 
Folsom,   Ins.   Co.  v.,   18   Wall.   237: 

663. 
Forbes  v.  Darling,  94  Mich.  621:    7n. 
Ford  V.  Lacy,  7  H.  &  N.  151:    571. 
Forrest,  Douglas  v.,  4  Bing.  686 :    22. 
Foster,  West  Chicago  Ey.  v.,  175  111. 

396:     359. 
Fowle  V.  Alexandria,  11  Wheat.  320: 

301. 
Frana,   Penn.   Co.   v.,    112   111.   398: 

502. 
Francis,  Eex  v.,  2  Stra.  1015:    626, 
Francklin,  Eex  v.,   17  How.  St.  Tr. 

625:    466. 
Freeman,    Saunders    v.,    Moore    33: 

590. 
Fuchs,    Hubbard   v.,    164   Mo.    426: 

G66. 
Fulbright  v.  Perry  Co.,  145  Mo.  432 : 

353. 


G 


Gallagher,   Cunningham  v.,   61   Wis. 

170:    416. 
Gallipot,  Manlove  v.,  2  111.  390:    179. 
Galyon,  Cooley  v.,  109  Tenn.  1:    308. 
Gant  V.  Shelton,  3  B.  Mon.  420 :    737. 
Gardner   v.    Mitchell,    6    Pick.    113: 

732. 
Garland  v.  Britton,  12  111.  232:    17. 


774 


TABLE   OF    CASES. 


[references 
Gas   Co.,   Blenkiron  v.,   2   Fos.   Fin. 

437:    385. 
Gas  &  Coke  Co.,  Knowles  v.,  86  U. 

S.  58:    152. 
Gassert,  Bogk  v.,  149  U.  S.  17:    361. 
Gate  City  Gas  Co.  v.  Farley,  95  Ga. 

796:    74111. 
George,   Anderson  v.,   1   Burr.   354: 

728. 
German  Sav,  Bk.  v.  Bates,   111  la. 

432:    371. 
Gibbons,  Goodwin  v.,  4  Burr.  2108: 

714. 
Gibson  v.  Hunter,  2  H.  Black.  187: 

293. 
Giles,  Oakley  v.,  3  East  167:    12. 
Gill  V.  Hoblit,  23  111.  420 :    13. 
Gillaspy,  O'Connor  v.,  170  Ind.  428: 

237. 
Gilmer,  Grigg  v.,  54  Ala.  425:    174. 
Gisborne,  Craig  v.,  79  Mass.  270 :    55. 
Glassell  v.  Mason,  32  Ala.  719 :    265. 
Goggs  V.   Huntingtower,   1   D.  &  L. 

599:     39. 
Goldey  v.  Morning  News,  156  U.  S. 

518:    93,  111. 
Goodall,  Bournonville  v.,  10  Pa.  St. 

130:    410n. 
Goode,  Belt  v.,  31  Mo.  128:    455. 
Goodwin  v.  Gibbons,  4  Burr.  2108: 

714. 
Gordon  v.   Stockdale,   89   Ind.   240: 

636. 
Goubot  V.  DeCrouy,  1  C.  &  M.  772 : 

154. 
Grady,  Smith  v.,  68  Wis.  215:    110. 
Graham,  Hall  v.,  49  Wis.  553:    170. 
Grand  Trunk  Ey.  v.  Ives,  144  U.  S. 

408:    545. 
Grantier  v.  Eosecrance,  27  Wis.  488 : 

104. 
Gray,  Eddy  v.,  4  Allen,  435 :    558. 
Green  v.  Hearne,   3   Term.   E.   301: 

181. 
Grenbank,  Winsmore  v.,  Willes  577: 

493n. 
Greenwade  v.   Mills,   31   Miss.   464: 
490. 


ARE  TO  PAGES] 

Gregory,  Turner  v.,  151  Mo.  101:  31. 
Grier,  Person  v.,  66  N.  Y.  124:  66. 
Griffin,  Empson  v.,  11  Ad.  &  C.  186: 

617. 
Griffin   v.   Henderson   117   Ga.   382: 

278. 
Grigg  V.  Gilmer,  54  Ala.  425:    174. 
Grows  V.  Me.  Cent.  Ey.,  69  Me.  412 : 

556. 
Gunston,  Wood  v.,  Style  466:    686. 
Gurley  v.  Mo.  Pac.  Ey.,  93  Mo.  445 : 

536. 
Guy,  Finney  v.,  189  U.  S.  335:    461. 


Haberstro,    Peaslee    v.,    15    Blatch. 

472:     18. 
Hagerstown    Bk.,    Sav.    Society    v., 

36  Pa.  St.  498:    457. 
Haines   v.   Fire  Ins.   Co.,   59   N.   H. 

199:    587. 
Halberstadt,  Morgan  v.,  60  Fed.  592 : 

479. 
Haldimand,  Macbeath  v.,  1  Term  E. 

172:    434. 
Hale  V.  Cove,  1  Stra.  642 :    684. 
Hall   v.    Browder's   Admr.,   4   How. 

224:    288. 
Hall  V.  Cedar  Eapids  Ey.  Co.,  115 

la.  18:    581. 
Hall  V.  Graham,  49  Wis.  553 :    170. 
Hall    V.    Johnson,    41    Mich.    286: 

505n. 
Hall,  Lowe  v.,  47  N.  Y.  104:    578. 
Hamilton,    McGann,    58    Conn.    69: 

233. 
Hammond   v.    Olive,   44   Miss.   543: 

148. 
Handy,  Dexter  v.,  13  E.  I.  474 :    726. 
Hardy,  Davis  v.,  6  B.  &  C.  225:    350. 
Hare  v.  Hyde,  16  Q.  B.  (n.  s.)  394: 

72. 
Hare,  Eex  v.,  1  Stra.  145 :    78. 
Harkness  v.  Hyde,  98  U.  S.  476:    98. 
Harriman  v.  State,  1  Mo.  504 :    146. 
Harrington  v.  Priest,  104  Wis.  362: 

526. 


TABLE  OP   CASES. 


775 


[references  are  to  pages] 


Harris  v.  Beam,  46  la.  118:    389n. 
Harrison,  Manwaring  v.,  1  Stra.  508  : 

430. 
Hart's  Adm'r  v.  Walker,  31  Mo.  26: 

189. 
Haverhill   Iron   Works,   Bk.   v.,    159 

Mass.  158:    352. 
Hawkins,  Cole  v.,  2  Stra.  1094:    62. 
Hawkins  v.  Taylor,  56  Ark.  45:    79. 
Hays,  State  v.,  23  Mo.  287:    260. 
Hayward,    Carpenters    v.,    1    Doug. 

374:    319. 
Heald,  Dale  v.,  1  C.  &  K.  314:    203. 
Hearne,  Green  v.,  3  Term  Eep.  301 : 

181. 
Heath  v.  White,  2  D.  &  L.  40:    41. 
Heller,  Dillon  v.,  39  Kan.  599:    115. 
Heller  v.  Pulitzer  Pub.  Co.,  153  Mo. 

205:    421. 
Henderson,  Griffin  v.,  117  Ga.  382: 

278. 
Henty,  Capital  &  C,  Bk.  v.,  L.  K.  7 

App.  Cas.  741:    482. 
Herbert,  North.  Pac.  Ey.  v.,  116  U. 
■    S.  642:    251,  689. 
Herbert  v.  Shaw,  11  Mod.  118:    716. 
Hercules,  Dart  v.,  34  111.  395:    108n. 
Herkelrath  v.  Stookey,  63  111.   486: 

561. 
Hicks,   Winchell   v.,   18   N.  Y.   558: 

366n. 
Higham  v.  St.  Trav.  Assn.,  183  Fed. 

845:    159. 
Hildreth  v.  City  of  Troy,  101  N.  Y. 

234:    252. 
Hill,    Broadhurst   v.,    137    Ga.    833: 

367n. 
Hill,  Douglass  v.,  29  Kan.  527 :    412. 
Hill  V.  Prosser,  3  Dow.  704:    200. 
Hindman  v.  First  Nat'l  Bk.,  112  Fed. 

931:    589. 
Hobbs    V.     Blanehard,     Style     167 : 

624n. 
Hoblit,  GUI  v.,  23  111.  420:    13. 
Hogg,  Buscall  v.,  3  Wilson  146 :    403. 
Hoggett  V.   Exley,   9   C.   &   P.   324: 

414. 
Hood,  Phillips  v.,  85  111.  450:    659. 


Hopkins,  Eddowes  v.,  1  Doug.  376: 

614. 
Hopkins  v.  Orr,  124  U.  S.  510:    618. 
Hopkins,  Roberts  v.,  11  S.  E.  202: 

634. 
Hopkinson  v.  Leeds,  78  Pa.  St.  396: 

348. 
Howard,  Solomon  v.,  12  C.  B.  (n.  s.) 

463:    217. 
Howell  V.  Pitman,  5  Mo.  246 :   408. 
Hubbard    v.    Fuchs,    164    Mo.    426 

666. 
Hudson,  Outhwaite  v.,  7  Exch.  380 

384. 
Hudson    V.    Wright,    204    Mo.    412 

673. 
Huguenin  v.  Eayley,  6  Taunt.  186 

503. 
Humphrey   v.    West,    3    Eand.    516 

744. 
Humphrey,  Case  v.,  6  Conn.  130:    8. 
Humphries  v.  Dist.  of  Columbia,  174 

U.  S.  190:    600. 
Humphries  v.   Parker,   52   Me.  502 : 

491. 
Hunter,  Gibson  v.,  2  H.  Black.  187: 

293. 
Hunter    v.    Parsons,    22    Mich.    95 : 

259. 
Huntingtower,  Goggs  v.,   1  D.  &  L. 

599:    39.  . 

Hunton,  Caswell  v.,  87  Me.  277:    505. 
Ilurlburt   v.   Palmer,   39   Neb.    158: 

103. 
Hurtt,  Esehbach  v.,  47  Md.  61 :    283. 
Hyde,  Hare  v.,  16  Q.  B.  (n.  s.)  394: 

72. 
Hyde,   Harkness   v.,   98   U.   S.   476: 

98. 
Hyde,  State  v.,  234  Mo.  200 :    274. 


Ibbetson,  Parker  v.,  4  C.  B.   (n.  s.) 

.346:    441. 
111.    Cent.   Ey.,   Collison   v.,   239    H). 

532:    262. 


776 


TABLE   OP    CASES. 


[references 
Imhoff  V.  C.  &  M.  Ey.  Co.,  20  Wis. 

344:    522. 
Ind.  &  Ark.  Lumber  Co.  v.  Brinkley, 

164  Fed.  963:    24. 
Inland   C.    &   N.   Co.  v.   Tolson,    13!) 

LT.  S.  551 :    498,  548. 
Inman,  Stiles  v.,  55  Miss.  469 :    294n. 
Ins.   Co.   V.   Folsom,    18   Wall.    237: 

663. 
Ins.  Co.,  Koon  v.,  104  U.  S.  106:   598. 
Ins.  Co.  V.  Swineford,  28  Wis.  257: 

193. 
Int.  Bk.,  Barteloot  v.,  119  111.  259: 

330n. 
Int  'nl.  Ey.  Co.,  Womack  v.,  100  Tex. 

453:    524. 
Irvine  v.  Kean,  14  S.  E.  292 :    246. 
Ives,   Grand  Trunk  Ry.   Co.  v.,   144 

U.  S.  408  :    545. 


Jackson,    Martyn   v.,    3   Keble   398 : 

694. 
Jackson   v.   Williamson,   2   D.   &   E. 

281:    605. 
Jarvis  v.  Shacklock,  60  111.  378:    212. 
Jenkin,  Martin  v.,  2  Stra.  1145:    629. 
Jenkins  v.  Davies,  10  Ad.  &  E.  (u.  s.) 

314:    266. 
John,    Eex   v.,    1    East.    P.    C.    357: 

373n. 
Johnson,  Arnold  v.,  1  Stra.  267:    375. 
Johnson,    Hall    v.,    41    Mich.    286: 

505n. 
Johnson,  Eex  v.,  2  Stra.  1000:    224. 
Johnson,  Eich  v.,  2  Stra.  1142:    319n. 
Johnson,  St.  L.  Ey.  Co.  v.,  74  Kan. 

83:    418. 
Jones  V.  Merrill,  113  Mich.  433:    87. 
Jones  V.  Spencer,  77  L.  T.  E.  536 : 

704. 
Jurey,  Mobile,  etc.,  Ey.  v..  Ill  U.  S. 

584:    586. 

K 

Kansas  City,  Barr  v.,  105  Mo.  550: 
546. 


ARE  TO   pages] 

Kavanaugh    v.    Wausau,    120    Wis. 

611:    569. 
Kean,  Irvine  v.,  14  S.  &  E.  292 :    246. 
Kearney    v.    Case    12    Wall.    275: 

653. 
Keat  V.  Barker,  5  Mod.  208:    385. 
Keeler  v.  Keeler,  24  Wis.  522:    89n. 
Kelley,  Maher  v.,  26  111.  348 :    43. 
Kelley,  Stumps  v.,  22  111.  140:    575. 
Kenefick   v.    Norwich    Ins.    Co.,    205 

Mo.  294:    363. 
Kennedy  v.  N.  Y.  Life  Ins.  Co.,  101 

N.  Y.  487 :    26. 
Knowles  v.  Gas  &  Coke  Co.,  86  U.  S. 

58:    152. 
Knowles   v.    Nixon,    17    Mont.    473: 

563. 
Koehler    v.    Adler,    78    N.    Y.    287: 

368. 
Koon  V.  Ins.  Co.,  104  U.  S.  106:    598. 


Laehman,    Morris   v.,    68    Cal.    109: 

560. 
Lacy,  Ford  v.,  7  H.  &  N.  151:    571. 
L.  S.  &  M.  S.  Ey.  Co.  v.  Proper,  136 

Mich.  352:    500. 
Lane,    Park   Laud   Co.    v.,    106   Va. 

304:    171. 
Langham,  Vicars  v..  Hob.  235:    223. 
Laquet,  O  'Fallen  Coal  Co.  v.,  197  111. 

125:    235n. 
Lawrence    v.    Shreve,    26    Mo.    492: 

399. 
Lawrence  v.  Stearns,   11  Pick.  501: 

591. 
Leach,  Money  v.,  3  Burr.  1692 :    751. 
Lee,  Wheelock  v.,  74  N.  Y.  495 :    660. 
Leeds,  Hopkinson  v.,  78  Pa.  St.  396: 

348. 
Leffler,  McArthur  v.,  110  Ind.  526: 

105. 
Leonard,  AUis  v.,  58  N.  Y.  288 :    542. 
Levett,   College   of   Physicians  v.,   1 

Ld.  Eay.  472:    318. 
Levin  v.  Eussell,  42  N.  Y.  251:    281. 
Lifford,  Scott  v.,  9  East  347 :    434n. 


TABLE   OF    CASES. 


777 


[references  are  to  pages] 


Lister  v.  Ferryman,  L.  R.  4  Eng.  7 

Ir.  App.  521 :    493. 
Lloyd  V.  Morris,  Willes  443:    613. 
Logan,  Fenwick  v.,  1  Mo.  401:    625. 
Lombard  v.   Cheever,   3    Gilm.   469: 

407. 
London   &   C.   By.   Co.,   Fletcher   v., 

L.  E.  (1892)  1  Q.  B.  D.  122:    337. 
London  &  C.  Ry.  Co.,  Phillips  v.,  L. 

R.  5  Q.  B.  D.  78:    688. 
London  &  C.  Ey.  Co.,  Toomey  v.,  3 

C.  B.  (n.  s.)  146:    321. 
Lord  V.   Cooke,  1  Wm.  Black.  436: 

199. 
Loudon  Sav.  Society  v.  Bk.,  36  Pa. 

St.  498:    457. 
Louisville  &  N.  Ey.  Co.,  Drummond 

v.,  109  Fed.  531:    399. 
Louisville  &  N.   Ey.   Co.   v.   McCoy, 

81  Ky.  403  :    739. 
Loveday's  Case,  Style  129:    715. 
Low  V.  Hall,  47  N.  Y.  104:    578. 
Lowe  V.  Stringham,  14  Wis.  222 :    97. 
Lower  Brick   Co.,   Brusseau   v.,   133 

La.  245:    529. 
Lowery,   Mt.   Adams   Ey.   Co.  v.,   74 

Fed.  463:    707. 
Lucas,  Baylis  v.,  1  Cowp.  112:    224n. 


M 


Macbeath  v.  Haldimand,  1  Term  E. 

172:    434. 
MacCarthy,  Bequet  v.,   2   B.   &   Ad. 

951:    108. 
Mackubin  v.  Clarkson,  5  Minn.  247: 

204. 
Madison,    Baker    v.,    62    Wis.    137: 

428. 
Magone,  Beuttell  v.,  157  U.  S.  154: 

366. 
Maher  v.  Kelley,  26  111.  348 :    43. 
Mlaine  Cent.  Ey.,  Grows  v.,  69  Me. 

412:    556. 
Maloney  v.   Adsit,    175   U.   S.   281: 

760. 
Manlove  v.  Gallipot,  2  111.  390 :    179. 


Manning  v.  West  End  Ey.,  166  Mass. 

230:    532. 
Manwaring  v.  Harrison,  1  Stra.  508 : 

430. 
Marks,  Covell  v.,  2  111.  525 :    219. 
Marsden,   Blewitt  v.,    10   East   237: 

178. 
Marshall  Ex'r,  Broadhead  v.,  2  Wm. 

Black.  955:     730. 
Martin,  Clerk  v.,  1  Salk.  129:    612. 
Martin  v.  Jenkin,  2  Stra.  1145:    629. 
Martyn  v.  Jackson,  3  Keb.  398 :    694, 
Maryland  v.  Baldwin,  112  U.  S.  490: 

619n. 
Marysville  Democrat,  Palmer  v.,  90 

Cal.   168:    360n. 
Mason,  Glassell  v.,  32  Ala.  719:    265. 
Massareene,  Maunsell  v.,  5  Term.  R. 

87:    187. 
Matthew,   Cham   v.,   Cro.   Eliz.   581: 

222. 
Maunsell  v.  Massareene,  5  Term.  E. 

87:    187. 
Maxwell,  Wait  v.,  5  Pick.  217:    719. 
Maynard   v.    Cleveland,    76   Ga.   52: 

207. 
Mayor  of  Devises  v.  Clark,  3  Ad.  & 

E.  506:    609. 
McArthur  v.   Leffler,   110   Ind.   526: 

105. 
McBride,    St.   L.   Ry.   v.,    141   U.   S. 

127:     82. 
McCarthy  v.  Cass  Ave.  Ry.,  92  Mo. 

.536:    249. 
McCoy,  L.  &  N.  Ry.  Co.  v.,  81  Ky. 

403:    739. 
McGann  v.  Hamilton,  58  Conn.  69 : 

233, 
McGowan,    Costley   v.,    174    111.    76: 

519. 
McKee  v.  Calvert,  80  INIo.  348:    616. 
McKenna  v.   Cooper,  79  Kan.  847: 

28, 
McKenzie   v.   Sykes,   47   Mich.    201: 

453. 
McVeigh,  Earle  v.,  91  U.  S.  503 :    59. 
Meekins  v.  Smith,  1  H.  Black.  636: 

65. 


778 


TABLE   OF    CASES. 


[REFEEENCES 
Merchants'    Bk.    v.    Haverhill    Iron 

Works,  159  Mass.  158:    352. 
Merchants'   Bk.   v.   Schulenbor^,   54 

Mich.  49:    379. 
Merchants  Nat'l  Bk.,  Plan.  Mill  v., 

97  111.  294:    165. 
Merrill,  Jones  v.,  113  Mich.  4o3:    87. 
Metropolitan  Ry.  Co.,  Feary  v.,  162 

Mo.  75:    565. 
Metropolitan  Ey.  Co.  v.  Wright,  L 

E.  11  App.  Cas.  152:    701. 
Meyer  v.  Nat'l  Biscuit  Co.,  168  Fed. 

906:    393. 
Michel,    Schroeder    v.,    98    Mo.    4'6: 

521. 
Middleton  v.  Baker,  Cro.  Eliz.  752: 

286. 
Miller,  Millner  v.,  4  Bibb.  431 :    180. 
Milles,  Petrie  v.,  3  Doug.  27 :    725n. 
Millner,  Miller  v.,  4  Bibb.  431 :    180. 
Mills,  Greenwade  v.,  31  Miss.   464: 

490. 
Mining  Co.,  Seap  v.,  201  Fed.  893: 

666n. 
Missouri  Pac.  Ey.  Co.,  Gurley  v.,  93 

Mo.  445:      536. 
MitcheU,   Gardner   v.,   6   Pick.    113: 

732. 
Mobile  &c.  Ey.  v.  Jurey,  111  U.  S. 

584:    586. 
Moletor  v.  Sinnen,  76  Wis.  308 :    73. 
Money  v.  Leach,  3  Burr.  1692:    751. 
Monroe,    Twombley    v.,    136    Mass. 

464:    476. 
Montgomery   v.    State,   55   Fla.    97: 

225. 
Moore,  Clough  v.,  63  N.  H.  Ill :    190. 
Morgan  v.  Halberstadt,  60  Fed.  592  : 

479. 
Morning  News,  Goldey  v.,  156  U.  S. 

518:    93,   111. 
Morris    v.    Lachman,    68    Cal.    109: 

560. 
Morris,   Lloyd  v.,  Willis  443:     613. 
Morrow,   St.  Paul  Ey.  v.,  65  Minn. 

382:    515. 
Moss  V.  Vroman,  5  Wis.   147:     742. 


ARE  TO  pages] 

Mount  Adams  Ey.  Co.  v.  Lowery,  74 

Fed.  463:    707. 
MuUer  v.  Ehlers,  91  U.  S.  249:    758. 
Murphy  v.  Bennett,  68  Cal.  528 :   677. 
Mylock  V.   Saladine,   1   Wm.   Black. 

480:    236. 


N 


Nashville  &  C.   Ey.   Co.  v.   Sansom, 

113  Tenn.  683:    390. 
Nat'l  Biscuit  Co.,  Meyer  v.,  168  Fed. 

906:     393. 
Neally  v.  Eedman,  5  la.  386:    149n. 
Neff,  Pennoyer  v.,  95  U.  S.  714 :    120. 
Nelson  v.  C.  B.  &  Q.  Ey.  225  lU.  197: 

]43. 
Netograph   Mfg.    Co.    v.    Serugham, 

197  N.  Y.  377:    76n. 
New  Eng.  Ins.  Co.,  Copeland  v.,  22 

Pick.  135:    307n. 
New  York  Life  Ins.  Co.,  Kennedy  v., 

101  N.  Y.  487:    26. 
Nixon,   Knowles   v.,    17   Mont.   473: 

563. 
Noonan  v.   Caledonia  Min.  Co.,  121 

U.  S.  393:    282. 
Norfolk  &  C.  Ey.  v.  U.  S.,  177  Fed. 

623:    552. 
North  Chicago  Ey.,  Burnham  v.,  88 

Fed.  627:    661. 
Northern  Pac.  Ey.   v.  Herbert,   116 

U.  S.  642:    251,  689. 
Northwestern  Nat  '1  Bk.,  First  Nat  '1 

Bk.  v.,  153  lU.  296:    667. 
Norwich   Ins.   Co.,   Kenefick  v.,   205 

Mo.  294:    363. 
Nudd    V.    Burrows,    91    U.    S.    426: 

543n. 

O 

Oakley  v.  Giles,  3  East  167:    12. 
O 'Conner,   Botsford   v.,   57  111.    72: 

150. 
O'Connor  v.  Gillaspy,  170  Ind.  428: 

237. 
0  'Fallen  Coal  Co.  v.  Laquet,  107  111. 

125:    235n. 


TABLE   OP    CASES. 


779 


[references 
Ogle  V.  Coffey,  2  111.  239 :    147. 
Olive,   Hammond   v.,   44   Miss.    543 : 

148. 
Oliver,  Simonds  v.,  23  Mo.  32:    582. 
Omaha  &  St.  L.  Ey.  Co.  v.  Dilly,  55 

Mo.  App.  123:    658. 
Oman,    Crawford   v.,    34    S.    C.    90: 

448. 
O  'Neil  V.  Orr,  3  Scam.  1 :    584. 
Orr,  Hopkins  v.,  124  U.  S.  510:    618. 
Orr,  O'Neil  v.,  3  Scam.  1:    584. 
Osburn  v.  Ey.,  75  Kan.  746:    648n. 
Oscanyan  v.  Arms  Co.,  103  U.  S.  261 : 

339. 
Outhwaite  v.  Hudson,  7  Exch.  380: 

384. 
Owen  V.  Owen,  22  la.  270 :    576. 


Page,  Collins  v..  Style  124:    174. 
Palmer  v.  Belcher,  21  Neb.  58:    44. 
Palmer,   Hurlburt  v.,   39   Neb.   158: 

103. 
Palmer  v.   Marysville   Democrat,   90 

Cal.  168 :    360n. 
Panjaud,  Burt  v.,  99  U.  S.  180:    239. 
Park  Land  Co.  v.  Lane,  106  Va.  304: 

171. 
Parker,  Humphries  v.,  52  Me.  502: 

491. 
Parker  v.  Ibbetson,  4  C.  B.    (n.  s.) 

346:    441. 
Parks,  Dunbar  v.,  2  Tyler  217:    240. 
Parmiter   v.   Coupland,   6   M.   &    W. 

105:    472. 
Parsons,  Bowdell   v.,   10   East   359: 

185. 
Parsons,    Hunter    v.,    22    Mich.    95: 

259. 
Parsons  v.  Sweet,  32  N.  H.  87 :    14. 
Passer,  Dobbs  v.,  2  Stra.  975:    189. 
Patterson,  State  v.,  68  Me.  473 :   469. 
Pautucket  Haircloth  Co.,  Stafford  v., 

2  Cliff.  82:    690. 
Feaslee  v.  Haberstro,  15  Blatch.  472 : 

18. 


ARE  TO  pages] 

Peunoyer  v.  Neff,  95  U.  S.  714:    120. 
Pennsylvania  Co.  v.  Frana,   112  111. 

398:    502. 
Pennsylvania  Co.  v.   Smith,  98  Ind. 

42:    648. 
Pepy's  Case,  3  Leon.  80:    513. 
Perry  Co.,  Fulbright  v.,  145  Mo.  432: 

353. 
Perryman,  Lister  v.,  L.  E.  4  Eng.  & 

Ir.  App.  521:    493. 
Person  v.  Grier,  66  N.  Y.  124:    66. 
Petijohn,  Am.  Cereal  Co.  v.,  70  Fed. 

276:    161n. 
Petrie  v.  Milles,  3  Doug.  27:    725n. 
Philips,   Chichester  v.,   T.   Eaymond 

404:    317. 
Phillips  V.  Hood,  85  111.  450 :    659. 
Phillips  V.  London  &  C.  Ey.,  L.  E.  5 

Q.  B.  D.  78:    688. 
Phillips  V.  Phillips,  93  la.  615:    330. 
Phoenix   Ins.    Co.   v.   Wulf,    9   Biss. 

285:    56. 
Pindar,  Wright  v.,  Aleyn  18:    289. 
Pitman,  Howell  v.,  5  Mo.  246:    408. 
Piano   Mfg.   Co.   v.   Easey,   69   Wis. 

246:    80. 
Pleasants   v.    Fant,    22    Wall.    116: 

325. 
Pomeroy  v.  State  Bank,  1  Wall.  592 : 

764. 
Pond,  Evans  v.,  31  Mo.  235:    205. 
Potter,  State  v.,  18  Conn.  166:    256. 
Poundstone,    Eockwood    v.,    38    lU. 

199:    568. 
Powers,  Prior  v.,  1  Keb.  811:    683. 
Prentis  v.  Bates,  93  Mich.  234:    419. 
Priest,  Harrington  v.,  104  Wis.  362 : 

526. 
Prior  v.  Powers,  1  Keb.  811:    683. 
Proper  v.  L.   S.  &  M.   S.   By.,   136 

Mich.  352:    500. 
Prosser,  Hill  v.,  3  Dow.  704:    200. 
Pulitzer  Pub.  Co.,  Heller  v.,  153  Mo. 

205:    421. 
Pullman  Co.,  Central  Transp.  Co.  v., 

139  U.   S.  24:     410. 
Putnam,  Vicksburg  By.   Co.  v.,   118 
U.  S.  545:    555n. 


780 


TABLE   OF   CASES. 


Querner,  Stowe  v.,  L.  E.  5  Exch.  155 
263. 

B 


Randolph  v.  Cook,  2  Port.  286 :    182. 
Basey,  Piano   Mfg.   Co.  v.,  69  Wis. 

246:    80. 
Eawlius,    Bruce    v.,    3    "Wilson    61 : 

187n. 
Eay  V.  Wooters,  19  111.  82 :    570. 
Eayley,  Huguenin  v.,  6  Taunt.  186 : 

503. 
Eedman,  Neally  v.,  5  la.  386 :    149n. 
Eeed,  Cossar  v.,  17  Q.  B.  (n.  s.)  540: 

404. 
Eepublic  Fire  Ins.  Co.,  Haines  v.,  59 

N.  H.  199:    587. 
Eex    V.    Chevalier    D  'Eon,    3    Burr. 

1513:    200. 
Eex  V.  Francis,  2  Stra.   1015:    626. 
Eex  V.  Francklin,  17   How.  St.   Tr. 

625:    466. 
Rex  V.  Hare,  1  Stra.  145 :    78. 
Eex   V.    John,    1    East,    P.    C.    357: 

273n. 
Eex  V.  Johnson,  2  Stra.   1000:     224. 
Reynolds   v.   Simonds,  Barnes,   446: 

735. 
Reynolds  v.  U.  S.,  93  U.  S.  145 :    243. 
Rhodes  v.   South  Ry.   Co.,   68   S.  C. 

494:    230. 
Rice  V.  State,  16  Ind.  298:    717. 
Rich  V.  Johnson,  2  Stra.  1142 :    319n. 
Richardson  v.  Boston,  19  How.  263 : 

324. 
Richardson  v.  Fisher,  7  Moore,  546: 

726. 
Richardson  v.  Weare,  62  N.  H.  80: 

638. 
Rigg  V.  Cook,  9  111.  336 :    597. 
Robbins,  Slaght  v.,  13  N.  J.  L.  340: 

40. 
Roberts  v.  Hopkins,  11  S.  &  R.  202: 

634. 
Rockwood  V.  Poundstone,  38  III.  197 : 

568. 


[references  are  to  pages] 

Rolf e  V.  Rumf ord,  66  Me.  564 :  424. 
Root  V.  Sherwood,  6  John.  68 :  593. 
Roper,  Davies  v.,  2  Jur.  (n.  s.)   167: 

715n. 
Rublee,  Bass  v.,  76  Vt.  395 :  355. 
Rudd  V.  Thompson,  22  Ark.  363 :  18. 
Rumf  ord,  Rolf  e  v.,  66  Me.  564 :  424. 
Russell,  Levin  v.,  42  N.  Y.  251:  281. 
Ry.,  Osburn  v.,  75  Kan.  746:  648n, 
Ry.,  Smalley  v.,  34  Utah.  423 :    360n. 


S 


St.    John 's    Lodge    v.    Callender,    4 

Ired.  335:    377. 
St.    Louis    Ry.    Co.    v.    Johnson,    74 

Kan.  83:    418. 
St.  Louis  Ry.  Co.  v.  McBride,  141  U. 

S.  127:    82. 
St.  Paul  Ry.  Co.  v.  Morrow,  65  Minn. 

382:    515. 
Saladine,  Mylock  v.,   1   Wm.  Black. 

480:    236. 
Sampson,  Conner  v.,  22  Tex.  20:   206. 
Samson,  Day  v.,  Barnes  448 :    199. 
Sandusky,  Wilderman  v.,  15  111.  59: 

625. 
Sansom,    Nashville   Ry.    Co.   v.,    113 

Tenn.  683:    390. 
Satchwell,  Barr  v.,  2  Stra.  813:    154. 
Saunders    v.    Freeman,    Moore    33 : 

590. 
Savage,  Berry  v.,  2  Scam.  261 :    387. 
Sav.  Bk.  of  St.  Paul  v.  Authier,  52 

Minn.  98 :    46. 
Sohroeder  v.  Michel,  98  Mo.  43 :   521. 
Schulenberg,   Merchant 's  Bk.   v.,  54 

Mich.  49:    379. 
Scott  v.  Lifieord,  9  East  347:    434n. 
Scrugham,   iNetograph   Mfg.   Co.   v., 

197  N.  Y.  377:    76n. 
Seap  V.  Mining  Co.,  201  Fed.  893: 

666n. 
Searle   v.   Barrington,   2   Stra.   826: 

402. 
Semple,  Abbott  v.,  25  111.  91 :    102. 
Semple  v.  Callery,   184  Pa.   St.  95: 

269. 


TABLE   OP    CASES. 


781 


[refeeences  are  to  pages] 


Settlemier  v.  Sullivan,  97  U.  S.  444 : 

52, 
Shacklock,    Jarvis    v.,    60    111.    378: 

212. 
Sharp,  Wright  v.,  1  Salk.  288:    754. 
Shauer  v.  Alterton,  151  U.  S.  607: 

510. 
Shaw  V.  Boland,  15  Gray  571 :    386. 
Shaw,  Herbert  v.,  11  Mod.  118:    716. 
Shelton,   Grant  v.,   3   B.   Mon.  420: 

737. 
Shenandoah  By.  Co.  v.  Ashby,  86  Va. 

232:    162. 
Sheppard,  Soles  v.,  96  111.  131 :    89n. 
Sherwood,  Koot  v.,  6  John  68:    593. 
Shreve,    Lawrence   v.,    26    Mo.   492: 

399. 
Sibert  v.  Thorp,  77  111.  43:    156. 
Simonds  v.  Oliver,  23  Mo.  32:    582. 
Simonds,   Eeynolds  v.,   Barnes  446 : 

735. 
Sinnen,  Moletor  v.,  76  Wis.  308 :    73. 
Slade's  Case,  Style  138:    685. 
Slaght  V.  Eobbins,  13  N.  J.  L.  340: 

40. 
Smeally  v.  Ey.,  34  Utah  423 :    360n. 
Smith    V.    Creason's    Ex'r,    5    Dana 

298 :    213. 
Smith  V.  Grady,  68  Wis.  215:    110. 
Smith,  Meekins  v.,  1  H.  Black.  636 : 

65. 
Smith,  Pennsylvania  Co.  v.,  98  Ind. 

42:    648. 
Smith,  Syderbottom  v.,  1  Stra.  649: 

319. 
Smith  V.  Wintle,  Barnes  405:    39. 
Soles  v.  Sheppard,  96  111.  131:    89n. 
Solomon  v.  Bitton,  L.  E.  8  Q.  B.  D. 

177:    703n. 
Solomon  v.  Howard,  12  C.  B.  (n.  s.) 

463 :    217. 
South  Devon  Ey.,  Elliott  v.,  2  Exch. 

725:    459. 
Southern    Exp.    Co.,    Wright   v.,    80 

Fed.  85:    734. 
Southern   Pac.   Ey.,   Walker   v.,   165 

U.  S.  593:    639. 


Southern  Ey.  Co.,  Ehodes  v.,  68   S. 

C.  494:    230. 
Sowell  V.  Champion,  6  Ad.  &  E.  407 : 

332. 
Spencer,  Jones  v.,  77  L.  T.  E.  536: 

704. 
Stafford  v.  Pautucket  Haircloth  Co., 

2  Cliff  82:    690. 
Stanley,  Davidson  v.,  2  IM.  &  G.  721: 

539. 
State  V.  Anderson,  81  Mo.  78 :    335n. 
State,  Burton  v.,  107  Ala.  108:    271. 
State,  Harriman  v.,  1  Mo.  504:    146. 
State  V.  Hays,  23  Mo.  287:    260. 
State  V.  Hyde,  234  Mo.  200:    274. 
State,   Montgomery   v.,   55  Ela.   97 : 

225. 
State    v.    Patterson,    68    Me.    473: 

469. 
State  V.  Potter,  18  Conn.  166:    256. 
State,  Eice  v.,  16  Ind.  298 :    717. 
State  V.  Stentz,  30  Wash.  134:    241. 
State   Bk.    of    Ind.,    Pomeroy   v.,    1 

Wall.  592:    764. 
State   Travelers   Ass'n,   Higham    v., 

183  Fed.  845:    159. 
Stearns,  Lawrence  v.,  11  Pick.  501 : 

591. 
Stein  v.   Valkenhuysen,   E.  B.  &  E. 

65:    77. 
Stentz,  State  v.,  30  Wash.  134:    241. 
Stephens    v.    White,    2    Wash.    203: 

299. 
Stiles  V.  Inman,  55  Miss.  469 :    294n. 
Stockdale,  Gordon  v.,   89   Ind.   240: 

636. 
Stookey,  Herkelrath  v.,  63  111.  486: 

561. 
Stoughton,  Capen  v.,  16  Gray.  364: 

606. 
Stowe  V.  Querner,  L.  E.  5  Exch.  155 : 

263. 
Stringham,   Lowe   v.,    14   Wis.    222: 

97. 
Strong    V.    Catlin,    3    Piniiey    121: 

188. 
Stumps  V.  Kelley,  22  111.  140:    575. 
Summers,  Baker  v.,  201  111.  52 :    532. 


782 


TABLE   OF   CASES. 


[references  are  to  pages] 


Swanson  v.  Allen,  108  la.  419 :  534. 
Sweet,  Parsons  v.,  32  N.  H.  87:  14. 
Swinef ord,  Ins.  Co.  v.,  28  Wis.  257 : 

193. 
Syderbottom  v.  Smith,  1  Stra.  649: 

319. 
Sykes,  McKenzie  v.,  47  Mich.  294: 

453. 


Tancreed   v.    Christy,    12    M.   &    W. 

316:    630. 
Taylor,  Hawkins  v.,  56  Ark.  45:    79. 
Taylor  v.  WUles,  Cro.  Car.  219 :    624. 
Terre  Haute  By.  v.  Voelker,  129  111. 

540:    646. 
Texas  &  Pac.  By.  v.  Volk,  151  U.  S. 

73:    574. 
Texas,  York  v.,  137  U.  S.  15 :    90. 
Thomas,   Tripp  v.,   3  B.   &  C.   427: 

187. 
Thompson,  Eudd  v.,   Ark.   363:     18. 
Thompson  v.  Thornton,  41  Cal.  626 : 

216. 
Thornton  v.  Bank  of  Washington,  3 

Pet.  36:    305. 
Thornton,  Black  v.,  31  Ga.  641.   594. 
Thornton,  Thomjjson  v.,  41  Cal.  626: 

216. 
Thorp,  Sibert  v.,  77  lU.  43:    156. 
Threldkeld,    Woodgate    v.,    3    Bibb. 

527:    304. 
Tilly  MU'  V.  Wharton,  2  Vern.  378: 

724. 
Tindal  v.    Brown,   1    Term  E.   167: 

431. 
Tolson,  Inland  C.  &  X.  Co.  v.,  139  U. 

S.  551:    498,  548. 
Toof  V.  Foley,  87  la.  8 :   400. 
Toomey  v.  London  By.,  3  C.  B.   (n. 

s.)    146:    321. 
Tousey,  Douglass  v.,  2  Wend.   352: 

604. 
Townsend,  Columbian  Granite  Co.  v., 

74  Vt.  183 :    155. 
Tripp  V.  Thomas,  3  B.  &  C.  427 :    187. 
Troy,  City  of,  Hildreth  v.,  101  N.  Y. 

234:    252. 


Tucker,  Dana  v.,  4  John.  487:  684. 
Turner  v.  Gregory,  151  Mo.  101:  31, 
Turquand  v.  Dawson,  1  C.  M.  &  E. 

709:    731. 
Twombley  v.  Monroe,  136  Mass.  464: 

476. 


U 


U.   S.,   Connors   v.,   158   U.   S.   408: 

238n. 
U.  S.,  Norfolk  By.  Co.  v.,  177  Fed. 

623:    552. 
U.   S.,  Beynolds   v.,   98  U.   S.   145: 

243. 
U.  S.,  Wilson  v.,  162  U.  S.  613:    270. 


Valkenhuysen,  Stein  v.,  E.  B.  &  E. 

65:    77. 
Varrelman,  Berger  v.,  127  N.  Y.  281: 

674. 
Vicars  v.  Langham,  Hob.  235:    223. 
Vicksburg  By.   Co.  v.   Putnam,   118 

U.  S.  545:    55.5n. 
Voelker,  Terre  Haute  By.  v.,  129  lU. 

540:    646. 
Volk,  Texas  &  Pac.  By.  Co.  v.,  151 

U.  S.  73:    574. 
Vose,  Bishop  v.,  27  Conn.  1 :    69. 
Vroman,  Moss  v.,  5  Wis.  147:    742. 


W 


Wabash  Ey.,  Browning  v.,  124  Mo. 

55:    580. 
Wait  V.  Maxwell,  5  Pick.  217:    719. 
Waldron  v.  Waldron,  156  U.  S.  361 : 

723. 
Walker,    Hart's    Adm'r   v.,    31    Mo. 

26:    189. 
Walker  v.  South.  Pac.  By.,  165  U.  S. 

593 :    639. 
Wallingford  v.   Dunlap,   14  Pa.   St. 

31:    631. 
Wallner  v.  Chicago  Trac.  Co.,  245  HI. 

148:    344. 


TABLE  OP  CASES. 


783 


[REFERENCES  ARE  TO  PAGES] 


Walpole  V.  Alexander,  3  Doug.   45: 

63. 
Warner  v.  Benjamin,   89  Wis.  290: 

509. 
Washburn,  Cunningham  v.,  119  Mass. 

224:    445. 
Wassum  v.  Feeney,   121   Mass.   93: 

716n. 
Watertown,  Amy  v.,  130  U.  S.  301 : 

47. 
Watt    V.    Watt,    L.    E.    App.   Cas. 

(1905)   115:    691. 
Wausau,  City  of,  Kavanaugh  v.,  120 

Wis.  611:    569. 
Weare,  Eichardson  v.,  62  N.  H.  80: 

638. 
West  Chicago  Ey.  v.  Foster,  175  111. 

396:    359. 
West  End  Ey.  v.  Manning,  166  Mass. 

230:    532. 
Westall  V.  Finch,  Barnes  406 :    79. 
West 's  Adm  'r  v.  Humphrey,  3  Band. 

516:    744. 
Weston,  Demming  v.,   15  Wis.   236 : 

676. 
Wharton,  Tilly  MH'  v.,  2  Vern.  378: 

724. 
Wheelock  v.  Lee,  74  N.  Y.  495 :    660. 
White,  Heath  v.,  2  D.  &  L.  40:    41. 
White,   Stephens   v.,    2   Wash.    203: 

299. 
Wilcox,  Dowdell  v.,  64  la.  721 :    423. 
Wilcox,  Williams  v.,  8  Ad.  &  E.  314: 

280. 
Wilderman  v.  Sandusky,  15  HI.  59: 

625. 
Willes,    Taylor    v.,    Cro.    Car.    219: 

624. 
Williams,  Barnes  v.,  11  Wheat.  415: 

635. 
Williams,  Denny  v.,  5  Allen  1 :    324n. 


Williams  v.  Wilcox,  8  Ad.  &  E.  314: 

280. 
Williamson,   Jackson  v.,   2   D.   &   E. 

281:    605. 
Wilson  V.  U.  S.,  162  U.  S.  613 :    270. 
Winchell   v.   Hicks,   18   N.    Y.   558: 

366n. 
Windsor  Ins.  Co.,  Donahue  v.,  56  Vt. 

374:    438. 
Winslow  V.  BaUey,  16  Me.  319 :    267. 
Winsmore  v.  Grenbank,  Willes,  577: 

493n. 
Wintle,  Smith  v.,  Barnes  405:    39. 
Womack  v.  Intn'l  Ey.  Co.,  100  Tex. 

453:    524. 
Wood  V.  Gunston,  Style  466 :    686. 
Woodford    v.    Fades,    1    Stra.    425: 

687. 
Woodgate's  Adm'r  v.  Threldkeld,  3 

Bibb.  527:    304. 
Wooters,  Eay  v.,  19  111.  82:    570. 
Worsley  v.  Bisset,  3  Doug.  58:    203. 
Worsley    v.    Filisker,    2    Eolle    177: 

286. 
Wright  V.  Crump,  7  Mod.  1:    318n. 
Wright,   Hudson   v.,    204    Mo.   412: 

673. 
Wright,   Metropolitan  Ey.  v.,  L.   E. 

11  App.   152:    701. 
Wright  V.  Pindar,  Aleyn  18 :    289. 
Wright  V.  Sharp,  1  Salk.  288 :    754. 
Wright  V.  South  Exp.  Co.,  80  Fed. 

85:    734. 
Wulf,  Phoenix   Ins.   Co.   v.,   9   Biss. 

285:    56. 


Yarber  v.  C.  &  A.  Ey.  Co.,  235  HI. 

589:    745. 
York  V.  Texas,  137  U.  S.  15 :    90. 
Young    V.    Englefield,    Godb.    328: 

401. 


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Agency — Bays.  A  banilhook,  by  Alfred  W.  liMyv, 
Professor  of  Law,  Nortliwestern  Uuivtrsity  SlLiooI 
of   Commerce.      $1.50. 

Agency  Outlines — Mechem  Outlines  of  Agency,  by 
Floyd  li.  Mecbem,  Professor  of  Law  in  tbe  Uni- 
versity   of   Chicago.      Second   Edition.      $2.00   net. 

Agency — Mechem  on  Agency.  A  treatise  by  Floyd. 
K.   Mecbem.     $5.00  net. 

American  Law — Andrews'  American  Law.     Second  Edi 
tion  by  J.   D.   .Andrews.     2  vols.     $12.00  net. 
Same,   1  vol.   ed.,   $5.00  net. 

Bailments  and  Carriers — Goddard's  Outlines,  by  E. 
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Bailments  and  Carriers — Van  Zile,  by  P.  T.  Van  Zile. 
D.'au    Detroit    College   of  Law.      Second   Ed.    $5.00. 

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Banks  and  Banking.  A  handbook  by  A.  W.  Bays. 
$1.50   net. 

Blackstone's  Commentaries — Cooley.  4th  Edition  Com- 
mentaries on  the  Laws  of  liugland  l>y  William 
lilackstoue,  with  a  translation  of  all  foreign  words 
and  phrases  appearing  in  tbe  text  and  very  full 
and  copious  notes  by  Thomas  M.  Cooley.  Fourth 
lOdition  by  J.  D.  Andrews.  2  volumes  $9.00  net. 
Same,   3r(l    Edition   $6.00  net. 

Business  Methods  and  Finance — I5y  George  L.  Corlis, 
Dean  Benton  College  of  Law. 

Carriers — Hutchinson.  The  Law  of  Carriers.  Second 
Ld.   by   Floy<l   K.  Mecbem.     $4.00  net. 

Code  Pleading — Phillips.  Principles  of  Pleadings  in 
Actions  uuiler  the  Codes  of  Ciril  Procedure  by  G. 
L.   Phillips.     $4.00  net. 

Commercial  Law — Bays.  American  Commercial  Law 
Scries.      'J   voLs.      $12.00.     Separately   $1.50  each. 

Commercial  Law — Corlis.  By  George  L.  Corlis,  Dean 
Benton  College  of  Law.     1  volume. 

Common  Law  Pleading — Andrews'  Stephen's  Pleadings. 
I'.v  Henry  John  Stephen.  Second  Edition  by  J.  D. 
Aiidrews.      $3.50  net. 

Contracts — Anson.  Second  American  Edition,  by  Jer- 
ome C.  Knowlton,  Professor  of  Law  in  the  University 
of  Michigan.     $3.50  net. 

Contracts — Bays.     A  handbook,  by  A.  W.  Bays.     $1.50. 
Contracts — Hanunon.      Tbe   General   Principles  of   Con- 
tracts, by  Louis  L.  Hammon.     $4.00  net. 

Contracts — Willis,  by  Hugh  E.  Willis,  Professor  Uni- 
versity of   Minnesota   Law  School.     $2.00   net. 

Corporations — Municipal — Elliott.  Second  Edition,  by 
.lulm  E.  Macy,  Professor  In  Boston  University  Law 
School.     $4.00   net. 

Corporations — Bays.  A  handbook  by  A.  W.  Bays.  $1.50. 

Corporations — Marshall — (Private).  A  treatise.  Sec- 
ond   Ed.   by  W.  L.   Marshall  and   W.  L.   Clark.     $4.00 

net. 

Corporations — Abbott — (Public).  A  treatise  by  How- 
ard S.   Abbott.     1  volume  $4.00. 

Criminal  Law — Clark  &  Marshall — Crimes.  Second 
Edition  by   Herschell  B.  Lazell.     $4.00  net. 

Criminal  Law  and  Procedure  Outlines — Washburn. 
Third   Ed.    by   M.    D.   Ewell.      $2.50   net. 

Damages — Willis,  by  Hugh  E  Willis.  Professor  ol 
Law,    University   of   Minnesota.      $2.00  net. 

Dictionary — Cyclopedic  Law   Dictionary,    $6.00. 

Dictionary — Kinney's  Dictionary  and  Glossary.      $4.00. 

Domestic  Relations — Peck,  by  Epaphroditns  Peck,  of 
tbe  Law  Dept.  of   Yale  University.     $3.50  net. 

Equity  Pleading  and  Practice — Fletcher,  by  William 
Meade  Fletcher.   $5.00  net. 


Equity  Pleading  and  Practice — Van  Zile,  by  Philip 
T.  Van  Zile.     $5.00  net. 

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by   G.   Fred    Kush.      $2.50    net. 
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Evidence — Hammon.  A  treatise,  by  Louis  L.  Ham 
mon.     $5.00   net. 

Evidence — Hughes.  An  Illustrated  treatise,  by  Thom 
as  W.  Hughes,  Professor  of  Law  in  the  University 
of  Illinois.     $4.00  net. 

Evidence — Kennedy.  A  practical  Codification  by  Rich- 
ard Lee  Kennedy.     $2.00  net. 

Evidence — Reynolds  Theory  of  Evidence,  by  William 
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Evidence — Reynolds.  Trial  Evidence  and  Cross  Ex 
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Insurance — Bays.     A  handbook,  by  A.  W.  Bays.    $1.50 

Insurance — Kerr.     $5.00. 

International  Law — Bordwell's  Laws  of  War.  By  W 
P.  Bordwell.  Professor  of  Law,  University  of  Mis 
souri.     $3.50  net. 

International  Law — Taylor.  Origin  and  Growth,  by 
Hannis   Taylor.     $5.50  net. 

Jurisprudence — Pattee.  The  Essential  Nature  of  Law, 
by  W.  S.  Pattee,  Doan  Law  Department,  Universit\ 
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Legal  Ethics — Warvelle.  A  discussion  of  professional 
conduct  by  George  W.   Warvelle.      $2.00. 

Negotiable  Instruments — Bays.  A  handbook  by  Alfred 
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Negotiable  Instruments — Bunker,  by  P.obert  E.  Bunker, 
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Officers — Mechem.  Public  Offices  and  Officers,  by  Floyd 
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Personal  Property — Childs,  by  Frank  Hall  Childs. 
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Real  Property — Bays.  A  handbook  by  A.  W.  Bays. 
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Real  Property— Tiffany,  by  Herbert  T.  Tififany.  2 
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Real  Property — Warvelle.  Elements,  by  George  W 
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Sales — A    handbook    by    Alfred    W.    Bays.      $1.50    ti.-i 

Suretyship — Spencer.  A  treatise  on  Suretyship  aii'i 
Guarantv,  bv  Edward  W.  Spencer.  Dean  Marquet;e 
University.   College  of  Law     $3.50  net. 

Torts — Cooley.  A  new  Law  School  Edition,  by  John 
Lewis.      $5.00   net. 

Xorts — Cooley's  Elements,  by  Thomas  M.  Cooley.  $3.50 
net. 

Wills — Rood,  by  John  R.  Rood.  Professor  of  Law. 
Uiiirersity   of "  Micbiir.'in.    $4.00  net. 


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